CMG Procurement Litigation Conference October 2017 Aaron Boyle Partner Arthur Cox

Disclosure and Participation Dealing with Losing Bids To be discussed… Disclosure and Participation Dealing with Losing Bids National Review Procedures

The Fundamental Principles of Disclosure Transparency and equal treatment underlines disclosure obligation What does this mean? Bidders need to understand what is for tender and how a winner will be picked The test regarding bidders’ required understanding: The reasonably well informed and normally diligent tenderer 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 actually thought criteria mean not determinative/irrelevant

Disclosure and Participation Applicable standard for disclosure depends on whether/which procurement rules apply Above threshold – then specific requirements such as… Scope of selection criteria - Article 58 Award criteria – Article 67 Light Touch Regime Publication of notices (Article 75) Apply general principles (Article 76)

Disclosure and Participation Courts have sought to distinguish “fully regulated” versus “light touch” “Covert” application of the Directive to partially/unregulated contracts But obligation to be transparent does apply Just up to awarding authorities to demonstrate how complied with

Disclosure Obligations Below Threshold V similar to “light touch” only fewer (i.e. no) regulations Where cross border interest, apply general principles Cross border interest? – Tecnoedi v Comune di Fossano Objective but not abstract – positive assessment Value Place of works/services to be performed Technical/specific characteristics

What can you decide not to Disclose? ATI Principles – leeway for evaluators Non disclosure permissible if: Not alter criteria for award Could not affect how tenders are prepared Not give rise to discrimination

ATI Principles in Action Dimarso v Vlaams 50/50 Low/medium/high used for quality Not disclosed – criterion neutralised Restatement of the law - Methodologies not need to be disclosed where: Not alter award criteria Not affect how tenders could be prepared Not discriminate Hard test to satisfy – consider transparency

Basic Standard for Disclosure – All Contracts Rules drawn up in a clear, precise, unequivocal manner All reasonably informed tenderers understand their exact significance and can interpret them in the same way Disclose all factors which will affect evaluation/outcome Award criteria Sub criteria All applicable weightings Methodology applied to weightings

Disclosure in Contracts – UK Transparency Principles CCS Published guidance 16 Feb 2017 Fundamental presumption in favour of disclosure Set out in tender docs what information will be disclosed after award What could be withheld The way pricing arrived at Certain IP How contractor expects to yield financial return Transparency section of Department websites Broad transparency clauses in Government contract | Using your new presentation template

Disclosure in Court – UK Procedures Guidance note from TCC Early disclosure may be justified Use coloured paper for confidential info! Court files open for inspection –restrictions on inspection should be limited Confidentiality rings | Using your new presentation template

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? Contracting authorities Must have a comparison with preferred bidder Regulations require characteristics and relative advantages of successful tender query use of “should have included”/ “would have benefitted from” approach

Template for Dealing with Losing Bid? Template Responses? RPS case says no How should commentary look? “under this criterion your response was considered [good/very good etc.]” (refer to disclosed methodology language) “The successful tender submitted a [marginally/significantly better etc.] response because [insert example with sufficient detail]” Must be able to stand over decision – reluctance to provide reasons generally causes more problems than disclosing them

Losing Bids - Importance of record keeping Energy Solutions EU Limited v Nuclear Decommissioning Authority £7 billion clean up contract for 12 nuclear sites Conscious decision to destroy contemporaneous records Judge highly critical Importance of audit trail – evidence of decision making What information before the decision makers? What records should be kept?

National Review Procedures Tender Advisory Service Live tender processes only The High Court Obstacles to challenge? Statement of Grounds – framing the complaint Discovery Not naturally or by implication out of existing grounds? Or expansion by stealth? Relatively narrow interpretation by Irish Courts (BAM PPP v NTMA)

Losing Bids and National Review OGP Guidelines August 2017 Reference to TAS Dealing with queries from unsuccessful bidders? Contents of standstill letters? No substantive guidance | Using your new presentation template

Concessions Directive What is a concession? Café, car park, restaurant, land swaps? PPP?, operating lease model? Any structure where access to State “asset” combined with right for service provider to make a return | Using your new presentation template

Concessions Directive New Regulations May 2017 Applies to utilities and public bodies Threshold of €5,225,000 (turnover of contract) Similar to light touch regime 5 years or longer where investment requires it Remedies Regulations apply to concessions | Using your new presentation template

Fall off in volume of procurement challenges to Court? Summary Transparency guiding principle for all tender processes – captured or not Fall off in volume of procurement challenges to Court? Better behaviour or better things to be doing? Concessions - Where are all the advertisements?

Thank You