Practical Application of new opportunities provided by New Regulations Edward Quigg

Competitive procedure with negotiation

The Open / Restricted Position SAG ELV Slovensko C-599-10 “once…tenders have been submitted…those tenders can no longer be amended [at the request of the CA or tenderer]…equal treatment and transparency preclude any negotiation” “[THE Public Sector Directive] does not preclude…mere clarification, or to correct obvious material errors, provided that such amendment does not in reality lead to the submission of a new tender”

When can it be used? 26(3) Competitive procedure with negotiation can be used where: May need something not readily available Include design or innovation Requires negotiation Where open or restricted procedure failed (Would anyone challenge its use?)

The Process Reg. 29 PQQ Initial tenders Negotiation Subsequent tenders Negotiation (last two steps can be repeated) Final tender Award

May award on initial tender (29(10)) Minimum requirements cannot be altered (29(6)) Must keep details of tenders confidential (unless otherwise expressly agreed) May reduce number of tenderers progressively 29(14)

Lightweight Negotiation Small contract for professional services CA marked the initial tenders quality section and gave feedback Could / should the same be done with price? Bidders able to amend quality submission Bids evaluated and award made

Outcome CA able to enter into a contract for what they wanted – not what the bidders thought they wanted Did not cause delay or unnecessary expense Bidders happy with process too

Uptake EU – 4.5% of all procurements Germany – 13% of all procurements UK – 3% of all and twice as many as CD Ireland – 1.7% and less than the number of CD

Qualification and Experience of Staff as Award Criteria

Qualification and Experience of Staff as Award Criteria Recital 94 Reg. 67(3)(b) Award criteria may include qualifications and experience of staff where they can have a significant impact on level of performance A welcome and common sense change

@ Selection Stage Criteria must be related and proportionate to subject matter of contract Reg 58(4) May set minimum levels for human resources Reg 58(16) Experience of similar projects Reg 58(17) Professional ability may be evaluated by skills, efficiencies, experience and reliability Reg 58(19)

@ Award Stage Principles Award on MEAT - Reg 67(1) Criteria linked to subject matter of contract – Reg 67(2) Criteria shall not confer unrestricted freedom of choice – Reg 67(6)

Evaluating People @ Selection Stage @ Award Stage But Reg 60(8) – means of proof at selection stage refers to Part 2, Sch 8 Schedule 8(f) - educational and professional qualifications of managerial staff “provided that they are not evaluated as an award criterion”

How to do it CVs and answers to quality question Who are you assessing? What are you assessing? How is it marked? Interviews / Pitches Who? What? How? Exam References What for? From you for an incumbent?

Managing Change You awarded to the “A” team but you get the “B” team Reg 72 rules It might be unavoidable Does it really matter? Are you being fair to yourself and other bidders?

E: Edward.Quigg@QuiggGolden.com T: 01 676 6744 E: Edward.Quigg@QuiggGolden.com London +44 (0)20 7022 2192 London@QuiggGolden.com Dublin +353 (0)1 676 6744 Dublin@QuiggGolden.com Belfast +44 (0)28 9032 1022 Belfast@QuiggGolden.com Jeddah +966 (0)2 651 82 22 Jeddah@QuiggGolden.com