Introduction to the EU Procurement Regulations Florence Gregg, figpc ltd E: [email protected] M:07834 322 134

Introduction to the EU Procurement Regulations

Florence Gregg, figpc ltdE: [email protected] M:07834 322 134

Types of requirements

Works – carrying out of a work or works (construction-type requirements)

Supplies – goods, products Services – engage a person to provide services

but does not include works or supplies Part A - to which the full Regulations apply Part B - where obligations relate only to

technical specification publication of the contract award notice, and the provision of statistical reports to Treasury

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Thresholds

Supply/Services £ 156,442* € 193k Small lots £ 64,846 € 80k PIN notice £ 607,935 € 750k

*central government departments £ 101,323 € 125k

Works £3,927,260 €4,845k Small lots £ 810,580 €1,000k PIN notice £3,927,260 €5.150k

Last revised on 1 January 2010 (updated every 2 years)

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Procedures - options

Open (anyone can tender) Restricted (shortlisted applicants tender) Accelerated Restricted Framework Agreements E-auctions

Others Negotiated / Accelerated Negotiated Competitive Dialogue Dynamic Purchasing System

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Technical specifications

Must be non-discriminatory Performance based - to stimulate competition Defined with reference to EU specifications

which are relevant Alternative standards submitted

bidder must demonstrate equivalence

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3 stages of evaluation – restricted procedure

1. Criteria for rejection of economic operators [Reg 23]

2. Selection of economic operators that are capable of fulfilling the requirement [Reg 24 & 25]

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Pre- Qual

6

3 stages of evaluation – restricted procedure



Shortlist at least 5

3. Contract award on the basis of the award criteria ie lowest price or most economically advantageous tender [Reg 30]

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Pre- Qual

Tender

7

3 stages of evaluation – open procedure



3. Contract award on the basis of the award criteria ie lowest price or most economically advantageous tender [Reg 30]

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Tender

1. Qualification/Exclusion criteria

Not a criminal (Art 45) – ie a criminal organisation, guilty of corruption, fraud, money laundering

Bankrupt - or winding up Judgement against a professional Guilty of grave professional misconduct Not paid social security requirements Not fulfilled obligations relating to taxes Serious misrepresentation in supplying information Suitability to pursue professional activity

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2. Supplier selection – look backwards

Purpose of initial selection stage is to determine which economic operators (suppliers) are capable of fulfilling your requirements: Economically and financially standing Technical capacity and professional ability

Must not mix up selection and award stages/criteria - they are separate stages even in an open procedure [Lianakis case C-532/06]

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3. Award criteria – look forward

Decision must be based on either

Lowest price, or

Most Economically Advantageous Tender

The tender that offers the best value for money

The optimum combination of quality and whole-life costs to meet the user’s needs

They must think through what they need to know and how they will evaluate them


3. Award Criteria - MEAT

Most Economically Advantageous Tender Quality, price, technical merit, aesthetic and functional

characteristics, environmental characteristics, running costs, cost - effectiveness, after sales service, technical assistance, delivery date/ delivery period/ period of completion Not an exhaustive list

Must be relevant and bring economic advantage

Must reflect key principles of transparency, non-discrimination, equal treatment, mutual recognition and proportionality


Criteria - weightings

Suppliers must be told

The award criteria and sub-criteria

Their relative importance so that that are able to address these in their submission

If not given weightings Stated in descending order of importance Provide reasons why not given eg complexity of

contract


Possible Numerical Scoring

5 = exceeds requirements** 4 = meets requirements 3 = meets requirements except for minor

aspects 2 = does not meet requirements but may be

adaptable 1 = major non-compliance with requirements

** Should only be used where the tender is, eg, asking for innovation ie the tenderer knows a ‘higher standard’ is desired [Letting International Ltd v London Borough of Newham 7 July 2008]


Notification of Decisions

At each stage, decisions should be notified as soon as possible, Including a decision not to make an award

EU tenders Standstill period Publish contract award notice in OJEU within 48 days

of award decision Requests for (normal) de-briefing must be

Fulfilled within 15 days In writing, if so requested


What does this mean for you?

Standstill notification to be sent as soon as possible after award decision made By most rapid means

It should be a personalised communication outlining why the you have not been awarded the contract or admitted to the Framework

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‘New’ Remedies (post 20.12.09)

Pre-contract Order a temporary

injunction Set-aside decisions taken

unlawfully Order documents are

amended Award damages Automatic suspension of

contract award

Post-contract Award damages Order prospective

ineffectiveness where serious breaches and applies a fine

Provides for alternative remedies (contract shortening, fines or both) in situations where ineffectiveness is inappropriate

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What is ineffectiveness?

The contract may be set aside (cancelled) Civil financial penalty (a fine) on the CA

Decided on a case-by-case basis by the court Will take account of all relevant factors Will be “effective, proportionate and dissuasive”

Court may rule on consequential matters If you are the ‘winner’ you need to apply to be

part of the challenge Possibly claim for breach of contract seeking

compensation for loss of contract won in good faith

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If it goes wrong ….

You have legal rights and, if proven, remedies are available

“Loss of a fair chance” Claims must be made within 3 months of award

From the date on which you have sufficient information

You cannot ‘sit on your hands’ to see how the tender turns out

Cases heard in the High Court in England, Wales and N Ireland; Sheriff’s Court in Scotland


Any Questions?


Thank you

Florence Gregg

figpc ltd


Documents

Introduction to the EU Procurement Regulations Florence Gregg, figpc ltd E: [email protected] M:07834 322 134