A 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 you have received:
no suitable bids,
no requests to participate or
no suitable requests to participate to a previous Open or Restricted tender exercises. For your NPwPP you cannot substantially alter the conditions of the contract from those in your previous Open or Restricted tender exercise. A tender shall be considered not to be suitable where:
it is irrelevant to the contract, being basically incapable (without major changes) of meeting your organisation's needs and requirements as specified in your procurement documents. A request to participate shall be considered not to be suitable where the bidder has been or would have been excluded or where it does not meet your selection criteria.
where the supplies or services can only be provided by a particular supplier for any of the following reasons:
The procurement aim is the creation or purchase of a unique work of art or artistic performance;
Competition is absent for technical reasons. This applies only if competition has been reduced artificially and no reasonable alternative or substitute exists);
The protection of exclusive rights, including intellectual property rights. This applies only if competition has been reduced artificially and no reasonable alternative or substitute exists);
Where it is necessary for reasons of extreme urgency. These events have been caused unforeseeable events and not caused by your Organisation. For example emergency situations affecting the public. In such cases the time limits for the Open or Restricted Procedure or Competitive Procedure with Negotiation cannot be complied with – they are too long.
You must justify the use of this procedure. It can only be used in situations which have not been created by your Organisation.
Organisations relying on this procedure should provide reasons why there are no reasonable alternatives or substitutes. For example could you use alternative distribution channels outside the UK or consider functionally comparable supplies and services?
Where the exclusive situation is due to technical reasons, these must be rigorously defined and justified on a case-by-case basis. Technical reasons may also derive from specific interoperability requirements e.g. ICT requirements, which must be fulfilled in order to ensure the functioning of the works, supplies or services to be procured.
This procedure can be used for goods:
Negotiated Procedure without Prior Publication can be used for services:
Where the rules of the contest require a services contract to be awarded to the successful contestant or one of the successful contestants, the negotiated procedure can be used without a call for competition, provided all the successful contestants are invited to negotiate the contract. Some examples can be found under Glasgow Design Competitions.
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, ou 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.
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 is no distortion of the market The outcome cannot be a procurement that unduly favours or disadvantages a particular supplier. It is the responsibility of your Organisation to make sure these requirements are met.