Introduction to the EU Procurement Regulations Florence Gregg, figpc ltd E: M:

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 © figpc ltd

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) © figpc ltd

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 © figpc ltd

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 © figpc ltd

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] © figpc ltd 2010 Pre-QualPre-Qual 6

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] Shortlist at least 5 3.Contract award on the basis of the award criteria ie lowest price or most economically advantageous tender [Reg 30] © figpc ltd 2010 Pre-QualPre-Qual TenderTender 7

3 stages of evaluation – open 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] 3.Contract award on the basis of the award criteria ie lowest price or most economically advantageous tender [Reg 30] © figpc ltd TenderTender

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 © figpc ltd

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] © figpc ltd

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 © figpc ltd

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 © figpc ltd

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 © figpc ltd

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] © figpc ltd

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 © figpc ltd

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 16 © figpc ltd 2010

‘New’ Remedies (post ) 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 17 © figpc ltd 2010

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 18 © figpc ltd 2010

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 © figpc ltd

Any Questions? © figpc ltd

Thank you Florence Gregg figpc ltd © figpc ltd