1. Dealing with tenderers during the procurement and debriefing process
Mary Dunne
18 October 2017

2. Dealing with tenderers during the procurement & debriefing process
Preparing and rolling out the Invitation to Tender and Invitation to Commence Dialogue – getting the legalities right from the start
Dealing with tenderers during the procurement process and in particular tenderers queries – What changes have been made to the Competitive dialogue and Competitive negotiated procedures?
Informing the tenderers of the outcome of the tender process – what information can you give and what must be kept confidential
The debriefing – do’s and don’ts from a litigation perspective

3. Changes to Procedures Open Restricted Competitive Dialogue
Competitive Negotiated Procedure
Innovative Partnership
Light touch regime for:
‘Part B Services’
‘Sub-Central Contracting Authorities’

4. When can you use the Procedures?
Open Procedure / Restricted Procedure
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.
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

5. Open Procedure Article 27 – Public Sector Article 45 – Utilities
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 at least 35 days before but within 12 months of the contract notice
reduced to 15 days for urgency “where a state of urgency duly substantiated by the contracting authority renders impractical the time laid down”
Note Recital 46 – this “need not be an extreme urgency brought about by events unforeseeable for and not attributable to the Contracting Authority”
35 days can be reduced to 30 days if tenders can be submitted electronically

6. Open Procedure Article 27 – Public Sector Article 45 – Utilities Article
The time limits are minimum only
Article 47 – Public Sector
Article 66 – Utilities

7. Restricted Procedure Article 28 – Public Sector Article 46 – Utilities
Two stage process – only those invited get to stage 2
Prequalification submission 30 days from Contract Notice (can be reduced to 15 for Utilities)
Tenders to be submitted 30 days from date invite is sent (to be set by agreement for Utilities but can’t be less than 10 days)

8. Restricted Procedure Article 28 – Public Sector Article 46 – Utilities
May limit invitees to 5 (Article 65 - Public Sector)
Utilities - no numeric minimum – just need to ensure adequate competition (Article 78 – Utilities)
30 days for receipt of tender may be shortened to 10 where an adequate PIN was published at least 35 days before but within 12 months of Contract Notice

9. Restricted Procedure Article 28 – Public Sector Article 46 – Utilities
Time limit for receipt of tenders for sub-central CA can be negotiated and in the absence of agreement won’t be less than 10 days from the date invitation to tender is sent
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

10. Competitive Procedure with Negotiation Public Sector – Article 29 Utilities – Article 47
Contract documents must state:
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
award criteria
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

11. Competitive Procedure with Negotiation Public Sector – Article 29 Utilities – Article 47
Clearly distinguishing Competitive Negotiated from Competitive Dialogue
Time limits are the same as for the Restrictive Procedure
- Prequal submissions
- 30 days from Contract Notice
(15 for Utilities)
- Tender submission
- 30 days from date invite sent
(may be agreed for Utilities but should be no less than 10)

12. Competitive Procedure with Negotiation Public Sector – Article 29 Utilities – Article 47
Time limits may be shortened as per the Restricted Procedure i.e. for urgency, prior PIN, sub-central authorities and electronic submission
Invitees may be limited to 3 (no numeric limit for Utilities)
The final tender may not be negotiated
The minimum requirements may not be negotiated

13. Competitive Procedure with Negotiation Public Sector – Article 29 Utilities – Article 47
Negotiation is not mandatory 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

14. Competitive Procedure with Negotiation Public Sector – Article 29 Utilities – Article 47
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.

15. Competitive Dialogue Public Sector - Article 30 Utilities – Article 38
CAs shall set out their needs and requirements in the contract notice and further define them in the notice and/or descriptive documents
The purpose of using the Competitive dialogue process is “to identify and define the means best suited to satisfying [the CA’s] needs.”
Prequalification Submission – 30 days from Contract Notice
May limit invitees to 3 (no numeric limit on Utilities)

16. Competitive Dialogue Public Sector - Article 30 Utilities – Article 38
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 only if specified in tender documents

17. Competitive Dialogue Public Sector - Article 30 Utilities – Article 38
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

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, RPS, and to give reasons
The Judge described the feedback as:
“largely content free platitudes”
“a flimsy and threadbare attempt to explain the decision”
“bland, anodyne, bureaucratic, uninformative formula”

19. Debriefing
The same responses were given to all the unsuccessful tenderers:
Criterion A1 “your response to this criterion was of a good standard. However, compared to the successful tenderer, it lacked sufficient specific detail on new studies and reports that would be required going forward.”
Criterion A2, “Your response to this criterion was of a very good standard. However, the successful tenderer provided more relevant and specific experience/lessons learned in recent public works contracts.”
Criterion A3 “Your response to this criterion was of a good standard. However, the successful tenderer offered a more comprehensive approach to ABP oral hearings and measures to maximise the chance of a successful outcome.”

20. Debriefing Judge Humphreys findings:
1. Scores alone will not suffice for qualitative criteria as a general rule
2. There are two separate elements to the obligation to give reasons under EU law, namely:
a CA must automatically give a summary of the reasons for its decision with the standstill letter (this is expressly transposed in the Irish Remedies Regulations); and
the CA must provide further information, within 15 days, upon receipt of a written request (under Article 41 of Directive 2004/18)

21. Debriefing
3. the 30 day limitation period and the standstill period runs from the date of the notification and not from the date of any subsequent dialogue or provision of information to a tenderer even if the notification does not include the required level of detail. 
4. The Remedies Regulations should be amended so that the standstill period is also 30 days.

22. Debriefing
“Member States must insure that [interested parties] have sufficient time for effective review of the contract award decisions” – Article 2a(1) of Directive 2014/24
Although not raised by the parties, the judge said that the change made to the marking system during the evaluation would have been fatal had it been raised. Breach of the principle of transparency.

23. The Principle of Competition
The potential for framework agreements to distort competition was looked at in the following case:
Copymoore Limited V Commissioners of Public Works of Ireland – [2016] IEHC 709
Was a minimum turnover requirement disproportionate and discriminatory?
Did the Framework distort competition?
Was the requirement for SMEs to form consortia in breach of competition?
Recital 59 of Public Sector Directive avoiding anti-competitive effects of bundling / frameworks

24. The Ability to use Discretion
Late Submission of Tenders
BAM Consortium v NTMA – [2016] IEHC 546
Adequacy of Regulation 8 Letters
“CAs must apply the General Principles when considering whether to accept late or omitted documents or when raising queries after the tender date or when availing of any discretion of this nature afforded to it under the applicable tender rules”
Manifest error is the test applied to the review of discretion and this is a high bar

25. Role of the court in a Procurement Review
Somague & Wills Bros V TII – [2016] IEHC 435
The court in a procurement challenge is there “to act as a review and not an appellant court”
Use the “ manifest error test when assessing discretion or judgement and not when deciding whether there has been a breach of a General Principle
Failure to disclose the use of a criterion was a breach of transparency and so “no degree of deference to the expert evaluation team is appropriate”

26. Regulation 84 Procurement Report (Public Sector)
Basic Information
Regulation
Name and Address of Contracting Authority
84(1)(a)
Subject Matter of the contract, framework agreement or dynamic purchasing system (DPS)
Value of the contract, framework agreement or DPS 
84(10(a)
Choice of Procedure
Justification for use of competitive negotiated process or competitive dialogue process
84(1)(e) & 26(4)
Justification for use of negotiated procedure without prior publication (Regulation 32)
84(1)(f) & 32

27. Conduct of the Procurement Process
Regulation
Reasons why means of communication other than by electronic means have been used for submission of tenders
84(1)(h) & 22
Conflicts of interest detected and subsequent measures taken
84(1)(i) & 24
Measures taken to ensure that competition is not distorted by the participation of a candidate or tenderer which had prior involvement
41(5)
Main reasons for decision not to subdivide contracts into lots
46(2)

28. Qualitative Selection (where applicable)
Selection Stage
Regulation
Reasons for setting minimum yearly turnover requirements above twice the estimated contract value (alternatively can set out the reasons in the procurement document)
58(9)
Qualitative Selection (where applicable)
Names of the selected candidates or tenderers and reasons for their selection
84(1)(b)
Reduction in number of qualified candidates
84(1)(b), 65 & 66
Names of the rejected candidates or tenderers and reasons for their rejection

29. Reasons for rejection of tenders found to be abnormally low
Award Stage
Regulation
Reasons for rejection of tenders found to be abnormally low
84(1)(c) &69
Name of successful tenderer 
84(1)(d)
Reasons why successful tenderer's tender was selected 
Where known the share (if any) of the contract or framework agreement which the successful tenderer intends to subcontract to third parties
84(1)(d)(i) & 71
Where known the names of the main contractor's subcontractors
84(1)(d)(ii) &  71
Decision not to award
Reason why contracting authority has decided not to award a contract or establish a framework or DPS
84(1)(g)

30. Regulation 84 Procurement Report
Note 1: If a contract award notice contains any of the above information the CA may refer to the Notice.
Note 2: There is no need to prepare a report in respect of Call Off Contracts under a Framework.
Note 3: Contracting Authorities must maintain the documentation evidencing at least the following for 3 years from the date of award of the contract:
communications with candidates and tenderers;
internal deliberations;
preparation of procurement documents
dialogue or negotiation if any;
selection and award of the contract.

31. Regulation 108 Procurement Report (Utilities)
Information
Regulation
The qualification and selection of economic operators and the award of contracts
108 (2) (a)
The use of negotiated procedures without a call for competition by virtue of Regulation 49
108 2 (b)
The non-application of Chapters 2 to 4 of Part 2 of the derogations provided for in Chapters 2 and 3 of Part 1
108 (2)( c)
The reasons why means of communication, other than electronic means have been used
108 (2)(d) & 39 (6)(a) & (b)
Measures taken to ensure that competition is not distorted by the participation of a candidate or tenderer which had prior involvement 66

32. THANK YOU