The negotiated procedure without a notice

Article 50 of the code sets out the bands in which the negotiated procedure applies and the minimum number of operators to consult. The minimum number rises with the value of the award.

Band	Operators to consult
Works from 150,000 euros up to 1 million euros	At least five
Works above 1 million euros and below the EU threshold	At least ten
Services and supplies above the direct award threshold and below the EU threshold	At least five

The number stated is a minimum and not a maximum: the authority may consult more, and the choice to widen the field has consequences for the rotation principle, as we shall see. Widening the field reduces the individual probability of award.

One observation on the band for works above one million. Moving from five to ten operators doubles the field in the band where values are highest, and produces a measurable effect on each invitee's probability of winning.

How the authority identifies the operators to invite is the step most directly affecting a candidate, and the code permits different means. The two main means are the market survey and the lists.

The market survey is the typical means: the authority publishes a notice and collects expressions of interest, from which it selects the operators to invite. The periods for expressing interest are usually short.

Lists of pre qualified operators and internal registers are the alternative: the authority draws on a field established previously, and access then runs through registration on the list. An operator not registered is not consulted, whatever its capacity.

The difference is strategic for an operator. A market survey requires continuous monitoring of published notices, with short response times. Registration on a list is a one off investment producing effects over time. An effective presence in an area requires both.

Here sits the most important rule in this article, because it determines whether an operator that has already worked for an authority can be invited again. The answer depends on the method of identification adopted.

The rotation principle applies as a matter of course. But for negotiated procedures authorities do not apply the principle where the market survey was carried out without limiting the number of economic operators meeting the requirements to be invited to the subsequent negotiated procedure.

The wording should be read precisely. The exception does not depend on the number of operators actually invited but on the absence of any selection at survey stage: if the notice does not select and all qualified operators expressing interest are invited, rotation does not operate.

The practical effect is twofold. For the authority, opening up the survey is the means allowing an incumbent to be re invited. For the operator, reading the market survey notice tells it whether its position as incumbent is an obstacle or not.

For awards in the negotiated procedure bands authorities award on the basis of the most economically advantageous tender criterion or, save for labour intensive contracts, the lowest price criterion. The criterion chosen must in any event be stated in the letter of invitation.

Freedom of choice is therefore wide below threshold, with the exception of labour intensive contracts for which the quality criterion is mandatory. Checking the criterion chosen is the first step in preparing a tender.

One connection should be flagged. Where a works or services contract below the EU thresholds and without certain cross border interest is awarded on the lowest price criterion, the mechanism of automatic exclusion of abnormally low tenders operates. The combination of negotiated procedure, price criterion and automatic exclusion defines a context in which discounting strategy has precise limits.

The negotiated procedure involves no published notice, but it is not opaque. Market survey notices and outcome notices are published.

Publicity for below threshold awards takes place at national level by publication on the authority's institutional website. At the conclusion of the procedure the authority publishes a notice of the outcome of the award, identifying also the economic operators invited to negotiated procedures.

That last element has considerable informational value. The list of invitees, published afterwards, allows an operator to know whether it was considered and by which competitors it was beaten, and to reconstruct over time the composition of the fields a given authority selects.

The negotiated procedure runs through stages worth knowing because they set out the tasks falling to the operator. Each stage has its own period and the periods do not overlap.

The market survey notice opens the identification stage, with a period for expressing interest that in practice is short. An expression of interest is not a tender: it attests that the requirements are met and that the operator is willing to be invited.

The letter of invitation opens the competitive stage. It contains the subject matter, the requirements, the award criterion, the evaluation criteria where applicable and the deadline for submitting the tender. It is the document replacing a notice and should be read with the same care.

Submission of the tender takes place through the digital procurement platform indicated, and requires the operator to be enabled on it. That is a task to resolve before the invitation rather than after.

Evaluation and award follow the rules of the criterion chosen, and downstream sit the checks on the successful tenderer's requirements and the periods preceding signature. The standstill periods are added and must be allowed for.

One programming point: weeks or months may pass between expressing interest and the award depending on the authority and the complexity, and the commitment of resources must be calibrated against that uncertainty. Uncertainty over duration is the rule and not the exception.

Confusing an expression of interest with a tender is the first, and leads to investing preparation time in a stage that requires little. The expression calls for a declaration and not a design.

Not being enabled on the platform when the invitation arrives is the second, and is the error that excludes for purely organisational reasons. It is the least defensible failure, since the step is purely organisational.

Reading the letter of invitation with less care than a notice is the third, and loses points on evaluation criteria the document had stated. The letter of invitation is the governing document of a negotiated procedure.

Ignoring the automatic exclusion regime where the criterion is lowest price is the fourth, and produces discounts that place the tender out of the running rather than at the front. A tender exactly at the calculated threshold is not saved.

Three actions define an effective presence in the negotiated procedure bands. They concern monitoring, registration and retrospective analysis.

Systematic monitoring of market survey notices on the institutional websites of authorities in one's catchment, with an internal process ensuring the deadlines for expressing interest are met, which are usually short. A notice found after the deadline is worth as much as one never published.

Registration on lists and registers, with periodic updating of the requirements declared, since a registration with superseded requirements produces no invitations. Updating should be scheduled rather than left to the expiry of the registration.

Retrospective analysis of outcome notices, to identify the authorities awarding services matching one's own capacity and the typical size of the fields they convene. The size of the field indicates the individual probability of award.