Voluntary Ex Ante Transparency Notices: When and Why to Use Them

A voluntary ex ante transparency (VEAT) notice is a notice published in the Official Journal of the EU and on eTenders informing the market that a contracting authority intends to award a contract without a prior publication — for example, using a negotiated procedure without prior publication, a direct award to a sole supplier, or a contract modification that the authority believes falls within the Article 72 permitted categories.

The VEAT notice serves as an invitation to challenge before the contract is executed. By publishing it, the authority triggers a ten-day standstill period within which any interested party may apply to the courts for a review of the award decision before the contract is made binding. If no challenge is brought within the ten-day window and the authority proceeds to execute the contract, the contract is protected from a declaration of ineffectiveness in court proceedings — one of the most severe remedies available for procurement irregularities.

The protection afforded by a VEAT notice is specific and limited: it protects against a declaration of ineffectiveness (which would void the contract). It does not provide an absolute defence against all procurement challenges, nor does it protect the authority against penalties, fines or findings of maladministration. However, given that a declaration of ineffectiveness is the most disruptive possible outcome of a procurement challenge — leaving the authority without a contract for work already in progress — this protection is very significant.

Authorities must be careful not to treat VEAT notices as a substitute for compliant procurement. The VEAT notice merely reduces the risk of the most severe remedy; it does not make an otherwise non-compliant direct award legitimate. An authority that routinely uses VEAT notices to protect non-compliant direct awards will attract regulatory scrutiny, C&AG findings and political accountability consequences even if each individual contract is technically protected from ineffectiveness.

VEAT notices are most commonly used in Ireland where: a contracting authority awards a contract under negotiated procedure without publication and wants to protect the award; a contract modification has been assessed as falling within Article 72 permitted categories but the assessment is not certain; an authority has changed the contract type or scope in a way that might be challenged as substantial modification; or an authority is in a genuine urgency situation and has proceeded with a direct award pending the outcome of an expedited tender process.

They may also be used where a framework call-off has been challenged on the basis that a mini-competition should have been conducted, and the authority wishes to protect the resulting contract while the challenge is assessed. In such situations, the VEAT notice and the ten-day standstill it triggers give the challenger an expedited path to court review rather than the standard judicial review timeline.

A VEAT notice is published using the standard EU procurement form (currently Form T16 under EU Implementing Regulation 2015/1986 or the equivalent form under the updated 2024 implementing regulation). The notice must identify: the contracting authority; the subject matter and value of the contract; the justification for proceeding without prior publication; and the name of the supplier with whom the contract is to be executed.

Publication is made simultaneously on TED and eTenders. The ten-day standstill commences the day after publication. The authority should not execute the contract until the ten-day period has elapsed and no interim order has been sought. If an application is made to court within the window, the authority should take immediate legal advice and should not proceed to execute without that advice. VEAT notices are an important but specialist tool — authorities unfamiliar with their use should consult the OGP procurement consultancy service before proceeding.