Route 3 - Develop Strategy - Procurement Route - Negotiated Procedure without Prior Publication
Negotiated Procedure without Prior Publication should only be used in very exceptional circumstances. These exceptions should be limited to cases where publishing a call for competition (e.g. Contract Notice) is not possible such as:
- Where no tenders, no suitable tenders, no requests to participate or no suitable requests to participate have been submitted for a previous Open or Restricted tender exercise, provided that the initial conditions of the contract are not substantially altered. A tender shall be considered not to be suitable where it is irrelevant to the contract, being manifestly incapable, without substantial changes, of meeting the organisation’s needs and requirements as specified in the procurement documents. A request to participate shall be considered not to be suitable where the bidder has been or would been excluded or where it does not meet the selection criteria.
- Where the supplies or services can be supplied only by a particular supplier for any of the following reasons:
- The aim of the procurement is the creation or acquisition of a unique work of art or artistic performance;
- Competition is absent for technical reasons (only if it is not caused by artificial narrowing down of the parameters of the procurement and no reasonable alternative or substitute exists);
- The protection of exclusive rights, including intellectual property rights (only if it is not caused by artificial narrowing down of the parameters of the procurement and no reasonable alternative or substitute exists).
- Where it is strictly necessary for reasons of extreme urgency (where the time limits for the Open or Restricted Procedure or Competitive Procedure with Negotiation cannot be complied with) brought about by events unforeseeable and not attributable to the Organisation, such as emergency situations affecting the public e.g. flooding.
Negotiated Procedure without Prior Publication in case of goods:
- Where the products involved are manufactured purely for the purpose of research, experimentation, study or development, but not including quantity production to establish commercial viability or to recover research and development costs. Note this should not be abused to allow a single supplier to be approached to design an item which must subsequently be purchased as a result of proprietary rights;
Where a change in supplier(s) would mean that the Organisation would have compatibility issues or disproportionate technical difficulties; this procedure can be used to acquire additional deliveries from the original supplier when needed to replace or increase supplies or installations.In this case, the contract or recurrent contract length must not exceed three years, other than in exceptional circumstances.;
For supplies quoted and purchased on a commodity market;
- For the purchase of supplies on particularly advantageous terms, from either a supplier which is definitively winding up its business activities, or the liquidator in an insolvency procedure, an arrangement with creditors, or a similar procedure under national laws or regulations.
Negotiated Procedure without Prior Publication in case of services:
- Where the contract concerned follows a design contest organised in accordance with the Public Contracts (Scotland) Regulations 2015 and where the contract concerned is to be awarded as part of the design contest to the winner or winners. Where there is more than one winner of the design contest, all of them must be invited to participate in the negotiation;
- In instances when all of the following apply:
- Where it is for new services consisting of the repetition of similar services performed by the supplier to which the Organisation awarded an original contract, provided that such services are in conformity with the basic project for which the original contract was awarded and the award indicated the extent of possible additional services and the conditions under which they would be awarded;
- The possible use of this procedure was disclosed in the Procurement Documents and the total estimated cost of subsequent services was taken into consideration by the Organisation when applying the thresholds in relation to the original contract; and
- Not more than three years have elapsed following the conclusion of the original contract.
As with all aspects of the Procurement Journey, the activities at this stage must be carried out in a carefully managed manner that supports the Principles of Procurement. As a minimum the processes must be carried out in a transparent way that ensures there is no distortion of the market place, the outcome cannot be a procurement that unduly favours or disadvantages a particular supplier and it is the responsibility of the Organisation to make sure that these requirements are met.
You must justify the use of this procedure; however, it can only be used in situations which have not been created by your Organisation. Organisations relying on the exception should provide reasons why there are no reasonable alternatives or substitutes such as using alternative distribution channels including outside the UK or considering functionally comparable supplies and services. Where the situation of exclusivity is due to technical reasons, they should be rigorously defined and justified on a case-by-case basis. Technical reasons may also derive from specific interoperability requirements which must be fulfilled in order to ensure the functioning of the works, supplies or services to be procured.
When fixing any time limits the Organisation must take account of the complexity of the contract.
A Contract Notice will not be published in this procedure. The only procurement documents which may be published would be a A Voluntary Ex-Ante Transparency (VEAT) Notice which an organisation can use to protect itself by sending a VEAT Notice to OJEU prior to entering the contract. It is still mandatory to publish a Contract Award Notice with this procedure.
[For Care and Support Services only: For many care and support services contract, an organisation may use the procurement procedures, tools and techniques of its choosing. You should follow a procurement procedure, as a matter of best practice, that is proportionate to the value of the contract and to take account of some fundamental considerations (for example, the TFEU fundamental principles where relevant and fair work practices).
When doing so, you may choose to adapt or streamline the Negotiated Procedure without Prior Publication described in the Public Contract (Scotland) Regulations 2015. If you do so, you are not obliged to follow the detailed procedural requirements set out in those Regulations. You should therefore not refer to the Regulations in the tender documentation issued to participants, as this may create an expectation that the detailed procedural requirements will be followed. In all cases, you should ensure that the procurement process is described accurately and clearly, and then adhered to.]