CMG Procurement Litigation Conference 23 June 2016 Aaron Boyle Partner Arthur Cox

Applicable Standard of Disclosure What type of contract is it? Fully regulated Partially regulated Concession Contracts 2

To be discussed… 3 Applicable Standard of Disclosure Dealing with Losing Bids National Review Procedures

Fully Regulated Contracts Regulation 67 Linked to the subject matter of the contract – Specific process of production, stage of lifecycle Not confer unrestricted freedom of choice – “holistic” award criteria? Relative weightings – can be a range Weightings not possible objectively – decreasing order of importance 4

Fully Regulated Contracts Full application of the RWIND test Healthcare at Home is the new SIAC Award criteria to be formulated so that RWIND tenderers interpret them uniformly If understandably and plausibly understand in different ways then breach of transparency Court to put itself in shoes of hypothetical tenderer – tenderer in relevant industry Evidence of what tenderers thought criteria mean not determinative 5

Fully Regulated Contracts Applying the Principles Sub-Criteria – disclose including weightings ATI Principles – non disclosure permissible if: – Not alter criteria for award – Could not affect how tenders are prepared – Not give rise to discrimination Query how ATI principles can be satisfied 6

Partially Regulated Contracts Old Annex II B – e.g. healthcare services Free to determine procedural rules Not bound to obligation to disclose weightings Bound to observe general principles – procedure not to be shrouded in “opacity” Up to contracting authority to decide how Courts will still assess whether standard has been met Why would you not disclose? 7

Concession Contracts – New Directive Article 41 Concessions Directive Objective criteria which comply with general principles Linked to the subject matter of the contract – Award marks for something not relevant? List in descending order of importance Can modify, exceptionally, based on innovative solution But must re-issue tender documents 8

General Standard for Service Concessions Sebat Ince Case Rules drawn up in a clear, precise, unequivocal manner All reasonably informed tenderers understand their exact significance and interpret them in the same way Hardwires RWIND into service concessions 9

Best practice dictates Disclose criteria, sub criteria and any weightings Evaluation methodologies should not have effect of ‘changing’ award criteria Once you disclose your rules you must stick to them – do not change, especially not after opening tenders 10

Dealing with Losing Bids Bidders – know your rights and what information entitled to (RPS case and Reg 55 requests) – Did you seek clarifications during bid phase? – Lessons to learn or one off? – Smell test – reasons provided v tender docs Contracting authorities – audit trail - which is better no document trail or document trail? Which documents? – Evidence that decision makers had the right information before them? – ultimately must be able to stand behind decisions taken 11

National Review Procedures Tender Advisory Service – Live tender processes only The High Court Pre-litigation correspondence Regulation 8 letter Statement of Grounds – framing the complaint Importance/difficulties in setting out grounds – Not naturally or by implication out of existing grounds? – Or expansion by stealth? 12

Summary Transparency guiding principle for all tender processes – captured or not Losing Bids – there is a balance between information and confidence in own process Review of Procurements – initial correspondence critical – It’s what you know and when you knew it 13

Thank You 14