Pre-Qualification Procurement Litigation Conference, CMG Events, Dun Laoghaire Anna-Marie Curran, A&L Goodbody 18 October 2017

Pre-Tender Market Engagement Related and Proportionate Selection Criteria Specifically permitted to conduct preliminary market consultation with market prior to start of process to inform suppliers & to seek advice on planning and conduct of process Reg 18: Design of procurement must not be made with intention of excluding it from Regs or of artificially narrowing competition - e.g. where design of procurement is made with intention of unduly favouring or disadvantaging certain economic operators Use of information gathered in preliminary market consultation must not have the effect of distorting competition or violating principles of transparency and non- discrimination Copymoore v. Commissioners for Public Works, judgment of 11 November 2016

Developing Robust Selection Criteria Need for Clarity Clinton (t/a Oriel Training Services) v Department for Employment & Learning [2012] NIQB 2 Experience criterion: “This shall include dates, outcomes and explanations as to why the experience is considered to be relevant to the particular professional and technical groups being tendered for”. Clinton failed because “no data provided in respect of achievements, success rates or destinations into positive outcomes…” Must be susceptible of a uniform interpretation by all reasonably well informed and diligent tenderers “Outcomes" did not have a well recognised meaning in the industry Criterion expressed with insufficient clarity which led evaluation team into manifest error MAIN-37859670-1

Developing Robust Selection Criteria Easycoach Ltd v Department for Regional Development [2012] NIQB 10 Selection Criteria: “…provide details of a relevant project within the last three years which demonstrates your ability to successfully [perform or provide the specified service]” Evidence that the evaluation panel took an "in the round", "lowest common denominator" and "notional regional contract area" approach to evaluation Panel members were ignorant of the regional contract areas for which the bidders were tendering Contracting authority had broadcast that it would evaluate tenders by a certain methodology, but failed to do so Clear breach of the principle of transparency MAIN-37859670-1

Robust Selection Criteria – Groups & Consortia Gaswise v. Dublin City Council [2014] IEHC 56 (14 February 2014) Turnover criterion: Must submit a statement confirming that your turnover exceeded €250,000 in any of the last three financial years… If tenderer proposes to use or rely on the financial resources of other entities.. it must establish that it shall have available… the financial resources of those entities which are necessary for performance of contract. Did ITT include a sufficiently clear & precise requirement which enabled all RWIND tenderers to uniformly understand the Turnover Requirement, in the case of a prime contractor/subcontractor tenderer, as being satisfied by submission of a statement that the combined turnover of the prime contractor & subcontractors exceeded €250k in any one of last 3 financial years? No - ITT did not make clear that this could be done so as to enable all tenderers so interpret it uniformly Contracting authority was in breach of its obligations of equal treatment and transparency in the formulation of the Turnover Requirement MAIN-37859670-1

Reliance on third parties & combining capabilities Reg 63(2): with regard to criteria relating to the educational and professional qualifications …or to relevant professional experience, an economic operator may only rely on the capacities of other entities where those entities will perform the works or services for which these capacities are required… Reg 63(5): Where an economic operator relies on the capacities of other entities with regard to criteria relating to economic and financial standing, the contracting authority may require that the economic operator and those entities be jointly liable for the execution of the contract. MAIN-37859670-1

Reliance on third parties Partner Apelski v Zarzad Oczyszczania, Case C-324/14 (judgment of 7 April 2016) “…Likewise, it is conceivable that, in specific circumstances, having regard to the nature and objectives of a particular contract, the capacities of a third party entity, which are necessary for the performance of a particular contract, cannot be transferred to the tenderer. Accordingly, in such circumstances, the tenderer may rely on those capacities only if the third party entity directly and personally participates in the performance of the contract concerned

Combination of capabilities Partner Apelski v Zarzad Oczyszczania, Case C-324/14 (judgment of 7 April 2016) “….it is conceivable that there may be works with special requirements necessitating a certain capacity which cannot be obtained by combining the capacities of more than one operator, which, individually, would be inadequate. In such circumstances, the contracting authority would be justified in requiring that the minimum capacity level concerned be achieved by a single economic operator or, where appropriate, by relying on a limited number of economic operators, in accordance with the second subparagraph of Article 44(2) of Directive 2004/18, as long as that requirement is related and proportionate to the subject matter of the contract at issue…”

Conflicts of interest Regulation 24 of SI 284 of 2016 Obligation for CAs to take measures to effectively prevent, identify and remedy conflicts of interest arising in the conduct of procurement procedures so as to avoid any distortion of competition and to ensure equal treatment of all economic operators. “Conflicts of interest” includes any situation where a relevant staff member or advisor has directly or indirectly a financial, economic or other personal interest which might be perceived to compromise his or her impartiality and independence in the context of the procurement procedure. What is CA’s Protocol/Policy on Conflicts of Interest? Has each member of evaluation team signed a Conflict of Interest Declaration?

Conflicts of Interest – Prior Involvement Regulation 41 of SI 284 of 2016 Where a candidate or tenderer (or an undertaking related to a candidate or tenderer) has advised CA or has otherwise been involved in the preparation of procurement procedure, CA shall take appropriate measures to ensure that competition is not distorted by the participation of that candidate or tenderer “Appropriate measures” must include (a) communication to other candidates and tenderers of relevant information exchanged; and (b) fixing of adequate time limits for receipt of tenders Candidate or tenderer shall only be excluded where there are no other means to ensure compliance with the duty to treat economic operators equally Prior to any exclusion, a candidate or tenderer must be given opportunity to prove that its prior involvement is not capable of distorting competition. Measures taken under Reg 41 must be documented in the Reg 84 Report Intrasoft International SA v European Commission, Case T‑403/12, judgment of 13 October 2015 MAIN-37859670-1

Conflicts of interest - previous employment Woods Building Services v Milton Keynes Council [2015] EWHC 2011 (TCC), judgment of 14 July 2015 Draft recommendation of the European Ombudsman in complaint 642/2008/TS against the European Commission The mere fact that Mr C had worked for all the shortlisted tenderers does not rule out the possibility that no conflict of interest could arise. Conflicts of interest may be more likely to arise in such circumstances. A person may be positively or negatively disposed towards companies for which he has previously worked, depending on the nature of the working relationship with each such company. The Ombudsman considers that a member of a tender evaluation committee, or an observer of a tender evaluation procedure, who has worked, or who is currently working for any of the tenderers may be considered, at the every least, as having an apparent conflict of interest. If the Commission had no choice but to use an expert that had worked for some of the tenderers, the Commission would need to make a special effort to ensure that the expert's work was not unduly affected by conflicts of interest. For example, the Commission would need to ensure that the identity of the individual tenderers was not disclosed. The Commission had not taken such measures in this case. MAIN-37859670-1

Providing Information to unsuccessful candidates Reg 6(2) of SI 130 of 2010 Notice shall inform the candidates and tenderers concerned of the decision reached, the exact standstill period applicable to the contract and a summary of the reasons for the decision Reg 2(3)(b) of SI 130 of 2010 “…a candidate is concerned if the contracting authority has not made information available to him or her about the rejection of his or her application before the notification of the contract award decision to the tenderers concerned. MAIN-37859670-1

Providing Information to unsuccessful candidates Reg 55 of SI 284 of 2016 55(1) CA shall, as soon as possible, inform each candidate and tenderer of a decision reached concerning the (a) conclusion of a framework agreement admittance to a dynamic purchasing system; (b) award of a contract, or (c) grounds for not awarding a contract, framework etc. 55(2) CA shall, as soon as possible but no later than 15 days following the receipt of a request in writing from a candidate or tenderer concerned, …inform any unsuccessful candidate of the reasons for the rejection of its request to participate Reg 5A of SI 130 of 2010 (as amended) New Regulation 5A as inserted by S.I. No. 327/2017 - European Communities (Public Authorities' Contracts) (Review Procedures) (Amendment) Regulations 2017 “Nothing in the preceding Regulation or Regulation 6 affects Regulation 55 (and, in particular, paragraph (2) of it) of the Public Authorities’ Contracts Regulations.”. MAIN-37859670-1

Take Away Selection criteria must be related and proportionate to subject matter of contract Criteria must be drafted with clarity Where reliance on third parties, CA may require third party performance or joint & several liability May prevent combination of capabilities if proportionate and related to subject matter of contract Careful consideration to conflicts of interest before, during and after tender process Debriefing candidates - reasons for the rejection but note also Reg 55

Pre-Qualification Procurement Litigation Conference, CMG Events, Dun Laoghaire Anna-Marie Curran, A&L Goodbody 18 October 2017 MAIN-37859670-1