Top Tips From Ireland’s Procurement Lawyers

I chaired CMG’s www.cmgevents.ie recent conference on procurement and tendering.

Hereunder is a summary of some of the points made by the procurement lawyers who presentted.

Tender Evaluation: Courts look at situations where there is a manifest error. Important that evaluators are not substituted during the evaluation process. The evaluation report, including Conflict of Interest Declarations, should be signed by all evaluators. Keep notes. Give evaluators plenty of time to assess tender responses prior to the evaluation meeting.

Clarifications: Cannot change essential conditions (for example introducing new technical specifications) by means of clarifications prior to submisiosn daedline. Best practice is that clarifications should be sought at evaluation stage, but in so doing a non-compliant submision should not be made compliant as a result of a clarification. Responses to clarifications are contractually binding.

Abnormally low tenders: Should seek clarifications if an abnormally low priced tender (that is not defined) is submitted. Decision taken should be carefully recorded in Procurement Audit Report.

Competitive Dialogue/Competitive Procedure with Negotiation: The use of these procedures must be justified and so recorded in procurement audit report. Main difference is that under CD it is possible to negotiate with preferred tender post Best and Final Offer stage. European Institute of Public Administration has published detailed guidance.

Results Letters: Use OGP templates (January 2019). Communicate characteristics and relative advantages of successful tenderer to compliant tenderers. Only possible to determine ‘relative’ advantages when evaluation of all submissions is completed. Detailed reasons should be given with reference to specifics. Respect tenderer’s confidentiality. A tenderer that is deemed as non-compliant does not need to be provided with a detailed briefing. No need to provide detail debriefing if scores are the same. Detailed narrative should be given to procurements with a contract value below €25,000. No obligation to give a tenderer’s ranking but it is best practice.

Standstill: Essential that a standstill notice letter must give sufficient information to enable an unsuccessful tenderer to decide whether there are grounds for seeking review.
Formal submission of legal papers starts the process.

Debriefing Meeting: Not recommended: ‘too dangerous’. Not a requirement under the procurement rules. Prepare carefully if a de-briefing meeting is agreed. Conduct an independent review of scoring where appropriate. The standstill (30 day) clock will not be reset if a debriefing meeting is held.

Keeping Records: A Procurement Audit Report, with supporting documentation (including evaluators’ notes), must be prepared and kept for three years for all tender competitions above EU threshold and in situations below the threshold where cross-border submissions received. Best practice is to prepare a PAR to support internal audit function.

Pre-tender Consultation: Permissible based on clear rules of engagement but must not result in a violation of the principles of transparency and non-discrimination. No guidance in Regulations about conduct of market consultation. One-on-one meetings most useful. All pre-tender consultation documents must be published. Best practice for high risk procurements.

Estimated contract value: Must be included in contract notice.

Discovery: Recent Court of Appeal ruling may make it more difficult to get discovery of documents.

Confidentiality: Publication of tender price in Contract Award Notice may be withheld if certain conditions met e.g. it might harm legitimate commercial interests of tenderer.

Freedom of Information: Office of the Information Commissioners guidance notes should be consulted. EU procurement law has primacy over Ireland’s FOI Act. Specific rules apply in relation to access to information on the environment.

Know How:https://beta.courts.ie/is a useful web site for sourcing procurement cases.

Peter Brennan

The material in this post is purely for information and discussion and does not purport to advise on matters of law. Any persons affected by the matters discussed in this post should seek legal advice on their particular situation.

In a previous post I looked at some figures for EU-level public procurement activity undertaken by Irish contracting authorities in 2018. In this post I will look at the overall figures for the EU 27 as a whole in 2018.

The following is a summary of the main figures:

Type of Notice	EU 27 in 2018	Notes
Contract Notice	213,731	An increase of 8% over 2017 (197,976 )
Open Procedure	186,047
Restricted Procedure	6,804
Negotiated Procedure	9,084	(Utilities)
Competitive Procedure with Negotiation	10,495	Only available to Public Sector Contracting Authorities since the adoption of the 2014 Directives. Take-up has been rapid and 2018 represents a 55% increase on 2017 (6,739).
Competitive Dialogue	774	An increase of 46% on 2017 (528).
Innovation Partnership	77	Up from 39 in 2017.
Accelerated Restricted Procedure	82
Accelerated Negotiated Procedure	16
Other/Not Specified	352
Contract Award Notice	228,548
Open Procedure	181,245
Restricted Procedure	10,105
Negotiated Procedure	8,875	(Utilities)
Competitive Procedure with Negotiation	9,287
Competitive Dialogue	594
Innovation Partnership	51
Accelerated Restricted Procedure	86
Accelerated Negotiated Procedure	1,939	Of which Portugal appears to account for 1,920?
Negotiated procedure without a call for competition	10,762	Seems very high given that this is supposed to be an exceptional procedure.
Contract award without prior publication/direct award	5,015	This only relates to acknowledged direct awards. There would appear to be a significant number of direct awards which are not declared via OJEU.
Not Specified /Other	589
Other Notices Used in 2018	EU 27	Notes
Voluntary Ex-Ante Transparency Notices	7,061	Often published to proof direct awards against challenge under Remedies Directives.
Modification of a Contract/Concession during its term	11,144	New transparency obligation imposed by 2014 Directives.
Dynamic Purchasing System	660	Usage increasing following simplification in 2014 Directives. UK appears to be the lead user of DPS with 253 advertised in 2018.
Prior Information Notice without call for competition	12,990	Often published with a view to reducing response timescales.
Prior information notice with call for competition	570	New feature of 2014 Directives and not available to central government bodies.
Periodic indicative notice without call for competition	557
Periodic indicative notice with call for competition	102
Qualification system without call for competition	291	Available to Utilities only
Qualification system with call for competition	593	Available to Utilities only

Comment:
The overall scale of activity is truly massive. Anyone who has been involved in just one OJEU-level procedure will appreciate the time and effort involved. The figures suggest that across the EU there are approximately 200,000 procedures in train at any given time. This represents a very large expenditure of effort and resources by public purchasers not to mention the corresponding time, effort and resources of all the economic operators who submit responses.

The most striking trend to emerge from the 2018 figures is the high take-up (10,495) of the new “Competitive Procedure with Negotiation” for which there seems to be a strong demand. It will be interesting to see how the use of this procedure progresses in future years in the light of buyers’ experience. There have always been concerns that, if not used properly, this procedure could shift the balance of bargaining power significantly from purchaser to supplier and lead to adverse outcomes for the taxpayer. A space to be watched.

Another noticeable trend is the increased usage of Dynamic Purchasing Systems (660) and it will also be interesting to follow how this procedure fares in future years. It would seem to have great potential in helping contracting authorities to address recurring purchases of standard “off-the-shelf” goods/services and works.
On the downside, the figures for use of direct awards (5015) and negotiated procedure without a call for competition (10,762) are disappointingly high, considering that these options are supposed to be exceptional and subject to strict limiting conditions.

Another curious feature is the apparently high level of Accelerated Negotiated Procedures used by Portugal in 2018 when it accounted for almost 100% of the use of this procedure across the EU 27.

James Farrell
Senior Procurement Consultant

e: james@publicprocurement.

Procurement Research Ltd. April 2019. The material in this post is purely for information and discussion and does not purport to advise on matters of law. Any persons affected by the matters discussed in this post should seek legal advice on their particular situation.

Background
The EU Procurement Directives make provision for certain very limited situations where a contracting authority may award contracts without advertised competition. These are set out at Article 32 (2)-(5) of Directive 2014/24/EU (Public Sector), and Article 50 (a)-(j) of the Utilities Directive and Article 31 (4) and (5) of the Concessions Directive. Those situations may be summarised briefly as follows:

The works, supplies or services can be provided by only one economic operator because:
(a) no suitable responses received to a previously-advertised tender competition;
(b) where for uniqueness (e.g. artworks) or technical or intellectual property reasons a product or service may be provided by only one economic operator (NB – subject to very significant additional detailed qualifications);
(c) because of extreme urgency brought about by unforeseen events that are not attributable to the contracting authority.

For supply (goods) contracts where:
(a) the products are purely for research purposes;
(b) additional deliveries by an original supplier (and subject to detailed qualification);
(c) for supplies quoted and purchased on a commodity market;
(d) for purchases on exceptionally advantageous terms due to liquidation of the suppler etc.

For new works or services where:
(a) a contract is to be awarded on foot of a previously advertised design contest;
(b) the new works or services consist of the repetition of similar works or services awarded to the original contractor under an advertised competition, provided that such works or services are in conformity with a basic project for which the original contract was awarded, and, when the basic project was advertised, the extent of possible additional works or services and the conditions under which they will be awarded was made clear (and subject to additional qualifications).

The Recitals to the three Directives (which should always be read carefully if contemplating a direct award) emphasise the very limited scope of these exceptions: “In view of the detrimental effects on competition, negotiated procedures without prior publication of a contract notice should be used only in very exceptional circumstances.”

In other words, the EU legislators were conscious that permitting direct unadvertised awards could facilitate anti-competitive behaviour and so these exceptions are very tightly drawn.

Because they are exceptional grounds, they will be construed narrowly by the courts and the onus will always be on the contracting authority to justify their use.
In short, any contracting authority contemplating the use of these procedures should take considerable care, including seeking legal advice, in order to ensure that they are not caught offside in making illegal direct awards.

Logic would suggest that a prudent contracting authority, if faced with any doubt on the matter, should err on the side of caution and conduct an orthodox advertised tender process.

As explained in my previous post on the Eurotunnel case in the UK, there can be serious consequences in the event that a contracting authority is found to have made an illegal direct award, including the risk of having the contract set aside as ineffective, and/or the award of damages and/or fines.

Voluntary Ex-Ante Transparency Notices
In order to mitigate the risk of ineffectiveness in bona fide cases the EU Remedies Directives make provision for the publication of a Voluntary Ex Ante Transparency Notice which allows for a minimal degree of transparency in direct award situations.

In completing the VEAT notice it is critical that the contracting authority gives sufficient information as to the nature and full extent of the contract and its justification for direct award without OJEU advertising, and observe a minimum 14 day standstill period before the contract is awarded.

This allows economic operators the opportunity to challenge the decision of the contracting authority and either force the holding of an orthodox competition or, should the contracting authority persist with the award, enable an aggrieved party to seek to have the award set aside in court. The advantage to the contracting authority of the VEAT procedure is that the penalty of mandatory ineffectiveness does not apply in the event of a challenge to a contract awarded after the 14-day standstill period has elapsed.

Irish contracting authorities may use the etenders portal to publish VEAT notices in appropriate cases.

According to Tenders Electronic Daily, there were 7,061 VEAT Notices published across the EU 27 in 2018, of which 28 were published by contracting authorities in Ireland. (NB – this is by no means the full extent of direct awards: it appears from the data on the TED website that there were 10,762 contracts awarded across the EU by “negotiated procedure without a call for competition” and a further 5,006 by “direct award without prior publication” during 2018. It seems likely too that a significant but unknowable number of over-threshold contract awards are made throughout the EU without any form of notice being published.)

The significant volume of VEAT notices published annually has given rise to concerns of possible abuse whereby these notices are being “sneaked out” in the hope that interested market operators will not pick up on them or be able to mount a challenge within the very tight limitation period of 14 days (or 10 days in some Member-States).

The European Commission in its most recent Report on the Effectiveness of the Remedies Directives does not appear to share that concern, and the use of VEAT notices is barely mentioned in it.

Another ground for concern is where a contracting authority fails to set out clearly the true nature and extent of the contract in the VEAT Notice, a factor which recently led the English Court of Appeal to set aside as ineffective a land development contract awarded by an English local authority in the Faraday Developments case because the Court found on the facts that the VEAT notice being relied on to resist Faraday’s claim of ineffectiveness failed to give a properly detailed description of the contract and therefore was not a valid notice that could be relied on to prevent the court making a declaration of ineffectiveness.

The European Court of Justice ruling in the Fastweb case C-19/13 (cited in the Faraday case) is also significant in the context of ensuring that direct award decisions are made for bona fide reasons in the limited exceptional circumstances provided for in the Directives.

Conclusion.
While it is useful for procurement officials to be aware of the existence of the VEAT Notice procedure which may be a legitimate option in appropriate cases, they should also be aware of the risks involved and the need for extreme care in making use of it.

James Farrell
Senior Procurement Consultant

e: james@publicprocurement.ie

This post is an exploratory discussion of procurement issues of general interest and does not purport to constitute legal advice.

Some €90 billion in supplies, services and works will be procured in Ireland and Northern Ireland over the next five years—a significant opportunity by any reckoning. While tendering is an essential but a complex task, many companies struggle to submit a compelling and competitively priced tender document. [Read more…]

The EU Public Contracts Directive (Article 84) requires all contracting authorities (of which there are over 3,000 in Ireland) to prepare a written report after every tender competition, other than mini-competitions conducted under framework agreements.

This audit report should contain the following:

– The name of the buyer
– The subject matter and value of the contract
– The results of the pre-qualification process i.e. the names of the successful candidates with reasons provided for selection/non-selection
– Reasons for rejecting abnormally low tenders
– The name of the preferred bidder and the reasons for selecting their tender
– The name(s) of sub-contractors and the share of the contract to be sub-contracted
– Justification, where appropriate, for the use of the competitive dialogue/competitive procedure with negotiation
– Reasons for not awarding a contract or a framework
– An explanation for not using an electronic submission
– Measures taken to address potential conflicts of interest of the evaluators
– Reasons for not using lots
In addition, buyers must maintain records of internal deliberations, records of dialogue or other meetings and details about the preparation of the procurement documents, including the setting of selection and award criteria.

Over time these procurement audits will become an important source of insight for unsuccessful suppliers. These documents may be discoverable under the Freedom of Information Act.

The preparation of procurement audits is a significant additional layer of compliance for buyers.

Contracting authorities that need advices or support in relation to the preparation of these new procurement audit reports should contact us now.

The Government’s plan includes the setting up of a Housing Procurement Unit within the Housing Agency to provide a procurement centre of excellence and support to local authorities and approved housing bodies. With some €5.35 billion to be spent over five years in constructing 47,000 housing units one could well ask if the current suite of procurement rules for small scale works of this nature is ‘fit for purpose’; and the answer is probably‘ no’ if the feedback we are getting from builders is anything to go by. What could be done to accelerate procurement, while incentivising small builders and developers and staying within the EU procurement rules?
Here are a few practical ideas.
1. The Office of Government Procurement should prepare a standard and simplified template for minor works contracts to replace the cumbersome and multiple forms that are currently used. Corresponding guidance for contracting authorities and suppliers should also be issued.
2. The template should comprise:
– a. Details of the houses to be built and the contracting authority’s requirements.
– b. A bespoke European Single Procurement Document (that can be used multiple times) for housing construction which allows tenderers to self-declare, for example that they will comply with the current Building Regulations.
– c. Standard award criteria, for example the contract fixed sum might account for 50% of the marks.
– d. A short standard contract for minor works.
– e. A standard Service Level Agreement to be agreed with all preferred bidders.
3. Tenderers should be asked to complete one document only.
4. All submissions should be done online. The current requirement is for the submission of multiple hard copies.
5. Set the limit for the vast majority of contracts below €5,225,000 as these tenders will not need to be advertised outside Ireland.
6. Stage payments should be made if contractors meet the deliverables set in their Service Level Agreement.
7. Use the single stage open procurement procedure as this is the cheapest way to procure.
8. Local authorities and AHBs who have not yet done so should set up a four-year framework for their requirements and appoint at least ten suppliers per county.
9. As many builders are not comfortable with tendering the Housing Procurement Unit should provide a ‘Help Desk’ facility.
10. Already very high turnover limits have been set which has the potential to exclude many small builders. Contracting authorities need to be mindful of the EU procurement rule that requires turnover thresholds should not be set at more than double the proposed contract value.
11. A fully resourced Housing Procurement Unit should actively encourage the setting up of bid consortiums and allow sole traders and small businesses combine their turnovers and capabilities.
12. The sooner the Unit arranges regional briefings to inform potential suppliers of the procurement rule of the road the better.
An up-front investment in getting the procurement rules right will save everyone time, money and effort.

The Remedies Directive was transposed into Irish law in March 2010. It was designed to bring a greater commonality amongst the EU Member States regarding aspects of Public Procurement that take place post the award of Contract.

The Remedies Directive provides guidance on how contracting authorities manage their ‘stand still’ period, areas where aggrieved suppliers can seek redress and also allows for award nullification in certain cases of serious breach of conduct. [Read more…]

Public Procurement Services welcomes the issue of these documents which are available for use across the public sector.  [Read more…]

It has been brought to our attention that many public bodies are not respecting or implementing the guidelines as set out in Circular 10/10. Entirely disproportionate requirements (for example as regards turnover and insurance) are still demanded in respect of low value and low risk tenders. [Read more…]

We are pleased to announce the official launch of Public Procurement Services, the Public Sector business unit of Bid and Tender Management Services Ltd. [Read more…]