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STOP PRESS: Now You Can Carry out a Two-Stage Phased Evaluation Under the Open Procedure and Still Comply with the PCR

on Thursday, 05 July 2018.

Standard procurement wisdom has always maintained that you cannot have more than a one-stage evaluation under the open procedure - until now.

An Advocate General's opinion arising from a Spanish court referral to the ECJ (Montte SL v Musikene) has stated that the public sector procurement Directive 2014/24 (on which the Public Contracts Regulations 2015 ("PCR") is based), does not prohibit contracting authorities from using an evaluation process which provides for the phased evaluation of bids when using the open procedure, so long as the requirements for contract award criteria set out in the Directive are complied with.

Although this is only an Advocate General's opinion at this stage, this is welcome news for those contracting authorities who have been unsure as to whether a multiple stage process - instead of the 'one stop' evaluation usually associated with open procedure procurements - is compliant. Having a two (or more) stage evaluation process, combined with the ability to set a minimum 'floor' score - providing a PASS/FAIL to determine which competitor will be eligible to continue to the next stage of the competition - makes it much easier to eliminate competitors in an efficient, structured manner.

Although this opens a new chapter to evaluation using the open procedure, it will always be necessary to bear in mind that the principles of equality of treatment, non-discrimination, and transparency, will always apply, no matter how many stages, and advice should always be sought if a contracting authority is unsure as to how compliant any evaluation structure is with reference to the PCR.


For more information, please contact Stephanie Rickard in our Procurement team on 0117 314 5675, or Wesley Hall on 020 7665 0970.

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