1. Dealing with tenderers during the procurement and debriefing process Mary Dunne 23 June 2016

2. 1 The New Regime European Union (Award of Public Authority Contracts) Regulations 2016 - transposing Directive 2014/18/EC European Union (Award of Contracts by Utility Undertakings) Regulations 2016 - transposing Directive 2014/17/EC -Published 5 May 2016 -Effective 18 April 2016

3. Key Changes in New Irish Regulations 1.European single passport document – self declaration 2.Revised time limits for participation and submission – shortened 3.All procurements must be conducted electronically by 2018 4.Lots - not mandatory but a written record explaining why they have not been used must be kept 5.Revised financial thresholds 2

4. Key Changes in New Irish Regulations 6.Regulation 84 report 7.Codification and elaboration of “Teckal” line of cases on in-house procurements 8.Obligation to comply with social, environmental and labour laws 9.Changes to procedures 10.Exclusions 11.Changes to contract post award 3

5. Changes to Procedures 1.Open 2.Restricted 3.Competitive Dialogue 4.Competitive Negotiated Procedure 5.Innovative Partnership 6.Light touch regime for: –‘Part B Services’ –‘Sub-Central contracting Authorities’ 4

6. 5 When can you use the Procedures? (Regulation 26) Open Procedure / Restricted Procedure Competitive Procedure with negotiation / Competitive Dialogue Competitive Procedure with negotiation / Competitive Dialogue Innovative Partnership Negotiation without prior publication Unrestricted Access There is no readily adaptable solution Design or innovative solutions are required Negotiation is necessary due to the nature, complexity, legal and financial make-up or risk profile of the project There is no standard technical specification that can be referenced Only irregular or unacceptable tenders were submitted. There is no readily adaptable solution Design or innovative solutions are required Negotiation is necessary due to the nature, complexity, legal and financial make-up or risk profile of the project There is no standard technical specification that can be referenced Only irregular or unacceptable tenders were submitted. The CA needs an innovative product, service or works that can’t be met by anything available on the market. Open or restricted procedure results in no acceptable tender Only that tenderer can perform the contract because: unique work of art or artistic performance; no competition for technical reasons; protection of “exclusive rights including IP Extreme urgency Open or restricted procedure results in no acceptable tender Only that tenderer can perform the contract because: unique work of art or artistic performance; no competition for technical reasons; protection of “exclusive rights including IP Extreme urgency

7. Open Procedure (Regulation 27) Unlimited access No prequalification But exclusionary/selection criteria can be built in Minimum time period for submission of tender is 35 days from date contract notice is sent - (reduced to 15 if an adequate PIN was published within 35 days and 12 months) -reduced to 15 days for urgency “where a state of urgency duly substantiated by the contracting authority renders impractical the time laid down” -reduced by 5 days for electronic submissions Regulation 47 – the time limits are minimum only 6

8. Restricted Procedure (Regulation 28) Two stage process – only those invited get to stage 2 Prequalification submission 30 days from Contract Notice Tenders to be submitted 30 days from date invite is sent May limit invitees to 5 (Reg 65) 30 days for receipt of tender may be shortened to 10 where an adequate PIN was published between 35 days and 12 months before Contract Notice 7

9. Restricted Procedure (Regulation 28) Time limit for receipt of tenders for sub-central contracting authorities can be negotiated (subject to Reg 47) and in the absence of agreement won’t be less than 10 days 30 days for receipt of tender may be reduced by 5 days (30 to 25) for electronic submissions Urgency – Prequal period reduced from 30 to 15 Tender submission reduced from 30 to 10 8

10. Competitive Procedure with Negotiation (Regulation 29) Contract documents must state: 1)subject matter of the procurement by providing a description of CA’s needs and characteristics required of the supplies, works or services to be procured 2)award criteria 3)minimum requirements Information to be sufficiently precise to enable an economic operator to identify the nature and scope of the procurement and to decide whether to participate 9

11. Competitive Procedure with Negotiation (Regulation 29) Prequal submissions – 30 days from Contract Notice Tender submission – 30 days from date invite sent Invitees may be limited to 3 Time limits may be shortened as per the Restricted Procedure i.e. for urgency, prior PIN, sub-central authorities and electronic submission The final tender may not be negotiated The minimum requirements may not be negotiated 10

12. Competitive Procedure with Negotiation No negotiation is required if CA reserve the right in the contract notice Codification of rules during negotiation -no discrimination -circulate any changes in technical specs or procurement documents in writing to all tenderers -allow adequate time after changes to modify and resubmit tender No breach of confidentiality among tenderers and general waivers are not acceptable Successive stages are permissible but there must be a final tender submission with no further negotiations. 11

13. Competitive Dialogue (Regulation 30) Prequalification Submission – 30 days from Contract Notice May limit invitees to 3 Sole award criterion is best price-quality ratio Time periods may be reduced as for Restricted Procedure Confidentiality to be respected and no general waiver Successive stages permitted until CA identifies a solution or solutions capable of meeting its’ needs 12

14. Competitive Dialogue (Regulation 30 ) Dialogue declared closed. Final tenders submitted. May be clarified, specified and optimised (as long as essential aspects of this tender are not changed) May negotiate with Preferred Bidder “to confirm financial commitments or other terms contained in the tender” provided the effect is not to materially modify essential aspects of the tender/distort competition / cause discrimination 13

15. Innovation Partnership (Regulation 31) Identify in the Contract Notice –Need for an innovative product, work or service not available on the market –Minimum requirements –Sufficiently precise info to enable tenderers to identify nature and scope of the required solution and to decide whether to participate May have an innovative partnership with more than one partner Prequalification submission within 30 days of Contract Notice May limit invitees to 3 Best price-quality ratio is the sole award criterion 14

16. Innovation Partnership (Regulation 31) The procedure may involve successive stages, intermediate payment stages and termination/reduction of partners The initial and all subsequent tenders may be negotiated but not the final one The CA may enter into commercial arrangement with the partner(s) once the product/service/work is developed which must be proportionate to the investment required for their development Selection Criteria must include R&D capacity of the tenderer 15

17. Health, Social & Cultural Services (Regulation 74) 16 Health, social and related services Administrative social, educational, healthcare and cultural services, compulsory social security services/benefit services community, social and personal services by TUs, political, youth and other membership organisations Religious services Hotel & restaurant Legal services Administrative and Government services Prison related services Public security and rescue services Investigation and security services International services Postal services Tyre-remoulding services Blacksmith services

18. Debriefing RPS v Kildare County Council, High Court 15 February 2016 Humphreys J was critical of Kildare County Council’s refusal to engage with the disappointed tenderer and to give reasons 17

19. Debriefing - Regulation 84 Report For every contract/framework (but not each contract under the framework) awarded a CA must prepare a written report containing at a minimum:- 1)name and details of CA 2)subject matter and value of contract 3)result of prequalification process i.e. names of successful candidates/tenderers with reasons for selection/non-selection 4)reason for rejection of abnormally low tenders 5)name of successful tenderer and reasons for selection of their tender 18

20. Debriefing - Regulation 84 Report 6)name of subcontractors and percentage of contract to be sub-contracted (if known) 7)justification for use of competitive dialogue/competitive procedure without prior publication 8)reasons for not awarding a contract/framework 9)any reason for not using electronic submission 10)conflicts of interest and measures taken 11)reasons for not using Lots 19

21. Debriefing Regulation 84 Report Must maintain record of: –communications with economic operators and internal deliberations –preparation of procurement documents –dialogue or negotiation, if any –selection and award of the contract The Report should be kept for 3 years The Report must be sent to the Minister for Public Expenditure and Reform who will send it to the Commission 20

22. THANK YOU