The Practical Challenges

The Practical Challenges
CMG Events – Procurement Seminar Royal Marine Hotel Dun Laoghaire 18th October 2017 The Practical Challenges Dealing with Procurement Challenge Damages, Interim Measures and Standstill Periods Freedom of Information and Procurement Patrick McGovern Retired Partner Arthur Cox Dublin

Dealing with Procurement Challenge – How can you prevent this from going legal?
CMG - Procurement Seminar - Dun Laoghaire – 18 October 2017

Dealing with Procurement Challenge
Preventing from going Legal Plan procurements carefully Formulate and apply clear, accurate and proportionate qualification criteria and award criteria Reserve adequate discretionary powers to CA in tender documents e.g. PQQ and ITT / ITN If possible try to avoid controversial areas (known difficult points) criteria which may be less readily markable (e.g. life cycle costs have few developed methodologies yet) CMG - Procurement Seminar - Dun Laoghaire - 18 October 2017

Some Established Points of Difficulty Errors and omissions - Bidder duty to ask? Principle of good administration extends to requiring bidders to complete their tenders accurately Tender documents routinely include a query or clarification section open to bidders This can disarm later complaints Acquiesce / Estoppel (Forum Connemara Limited v Galway County Local Community Development Committee [2015] IEHC 369 (Barrett J) and [2016] IECA 459 (Ryan P, Irvine and Hogan JJ per Irvine J)) If bidders argue that tender requirement is unclear Courts will now increasingly look at whether bidder used opportunity to query during tender process Good for CA to be seen to have made this opportunity available CMG - Procurement Seminar - Dun Laoghaire - 18 October 2017

Bidder Duty to Ask ? J Varney & Sons Waste Managementd Ltd v Hertfordshire County Council (High Court, QBD, Flaux J (16 June 2010)) [2010] EWHC 1404 (QB) [2010] EuLR 669 “None of the potential tenderers raised any query about sub-criteria or weightings attached to them” “If any of the tenderers had wanted clarification of what marks would be attached to each Return Schedule, they would surely have asked” Affirmed by English Court of Appeal (Rix, Hooper and Stanley Burnton LJJ), 21 June 2011 [2011] EWCA Civ 708, [2011] 3 CMLR 35 Healthcare at Home v Common Services Agency (Court of Session, Outer House, Scottish High Court) [2012] CSOH 75 (May 2012) and Inner House (Scottish Court of Appeal) [2012] CSIH 22 and UK Supreme Court [2015] UKSC 49 “If a tenderer unsure about the meaning of the instructions he was given a means of obtaining prompt clarification” CMG - Procurement Seminar - Dun Laoghaire - 18 October 2017

Clarification – Practical Tips Generally speaking clarification is a power/discretion and only exceptionally an obligation Ability to evaluate tender as submitted is the key test If a bid is ambiguous meaning you can’t evaluate it, where clarification is straightforward and expedient to raise and receive then there is an obligation to clarify under principle of sound administration of tender process But where tender ambiguous and no opportunity to establish what it actually meant then arguably must reject : Case T/ Tideland Signal v European Commission Correction of errors – depends on how “obvious” it is – if it is patent then quaere whether this gives rise to an obligation to clarify If error is not obvious on face of the tender then suggest no obligation to clarify If information is missing but tender is capable of evaluation on its face, then seeking the missing information likely to result in change to bid CMG - Procurement Seminar - Dun Laoghaire - 18 October 2017

Clarification – Practical Tips Exercise considerable caution when deciding whether to seek clarification around errors or missing information at all Clarifications ought to be based on what has been received (not on what has not) In no case should a clarification result in a change to a bid – general principle is that, once submitted, ought not to be changed (Clinton t/a Oriel Training Services v Department of Employment and Learning [2012] NICA 48) Make sure tender documents include a statement that bidders must complete tenders accurately and fully and that this is their responsibility Generally tender document should reserve right to seek clarifications Can make good sense to exercise your reserved discretion to clarify provided it is done in an even handed manner CMG - Procurement Seminar - Dun Laoghaire - 18 October 2017

Abnormally Low Tenders or Offers (ALTs) Abnormally low tenders a particularly difficult matter – Regulation 69 of Irish Public Sector Regulations 2016 (SI No 284 of 2016) and Article 69 of 2014 Public Sector Directive If economic and financial stability is qualification criterion (as virtually always) do not confuse this with ALT but it may be easier to apply than ALT Economic and Financial Standing (financial robustness of bidder) as a Qualification Criterion may not be applied at Award Stage but CA entitled to refresh/update circumstances proper to continuing compliance with already evaluated Selection/Qualification Criterion – e.g. if finances of bidder have deteriorated since Qualification Stage this may be a proper ground for exclusion without any reference to ALT and the legal uncertainties attending ALT If CA applying ALT and minded to exclude on that ground, then suggest only safe course is to follow procedures meticulously with relevant bidder and safer to err on the side of there being duties to particular bidder and probably to all bidders CMG - Procurement Seminar - Dun Laoghaire - 18 October 2017

Modification / Changes Beware changes to Procurement process or contract which may infringe “materiality” test in Regulation 72 of 2016 Irish Public Sector Regulations and Article 72 of Public Sector Directive 2014 “Materiality” test (“substatial” in 2016 Regs) based on Pressetext [2008] ECR I-4401 Further discretions allowed in Regulation 72 – Pressetext codified Note conditions for going beyond permitted deviations (akin to “safe harbour”) Corporate succession incorporated in Regulation 72 – such as insolvency Consider formulating review clauses carefully and on basis of new entitlements which are proportionate and are expressed in clear concise and unequivocal terms Beware of “carte blanche” variation clauses - R(Law Society) v Legal Services Commission [2008] 2 All ER 148 (carte blanche variation clause struck down by English Court of Appeal) - Edenred (UK Group) Ltd v HM Treasury and Others [2015] UKSC 45)(in Edenred UK Supreme Court upheld apparently very wide scope of variation under 2015 English Public Sector Regulations but OJEU Notice was particularly wide and clear ) CMG - Procurement Seminar - Dun Laoghaire - 18 October 2017

Mandatory and discretionary exclusions Note new mandatory exclusion grounds in 2016 Irish Public Sector Regulations and 2014 Directive Terrorist offences or offences linked to terrorist activities Child labour or other forms of trafficking human beings Breach of obligations on tax or social security contributions (but subject to exceptions) Obvious potential difficulties here including where there would be a technical breach of a prior contract but through no fault of the particular EO Some of these exceptions give potential for controversy (such as, “where only minor amounts of taxes or social security contributions … are unpaid”) (this could refer, for example, to an absolute sense or perhaps a relative sense) Further exception where bidder informed of exact amount due only shortly before, or after, submitting tender Discretionary exclusion grounds violation of applicable obligations in Regulation 18(4) (breach of environmental, social and labour law of EU or national law or collective agreements or relevant international equivalents (e.g. under ILO) Some known difficulties even in Ireland - for example, enforceability of collective agreements at time when certain aspects of Labour Court operations (unconstitutional) CMG - Procurement Seminar - Dun Laoghaire - 18 October 2017

Mandatory and discretionary exclusions Where conflict of interest cannot be effectively remedied by less intrusive measures Where CA can demonstrate, by appropriate means, that EO was guilty of grave professional misconduct which renders its integrity questionable (note component parts of this exception including requiring rendering integrity questionable and “appropriate means”) Distortion of competition from prior involvement of EO in preparation of procurement procedure [CA can take specific steps to plan how to prepare its return procedure and thus avoid a pitfall under this provision rather than be the guinea pig in litigation] Where an EO has shown significant or persistent deficiencies in the performance of a substantive requirement under a prior public contract … which led to early termination of that prior contract damages or other comparable sanctions whether the same CA or a different CA Obvious potential difficulties where there would be a technical breach of a prior contract but through no fault of the particular EO Where EO guilty of serious misrepresentation in supplying information required for verification, absence of grounds for exclusions [note: Easycoach Ltd v Department for Regional Development Ltd [2012] NIQB 10 and duty of careful due diligence where enquiries are made] CMG - Procurement Seminar - Dun Laoghaire - 18 October 2017

Damages, Interim Measures and Standstill Periods – Importance and Practice
CMG - Procurement Seminar - Dun Laoghaire - 18 October 2017

Damages, Interim Measures and Standstill Periods
Strictness of Time Limits and Limitation Periods Well established that in Procurement Law time limits and limitation periods construed quite strictly Dekra Eireann Teoranta v Minister for the Environment and Local Government, Supreme Court [2003] 2 IR 270 (remedies required to be rapid and effective) Forum Connemara Limited v Galway County Local Community Development Committee, High Court of Ireland, Barrett J, 15 June 2015 [2015] IEHC 369 and reversed by Court of Appeal of Ireland, (Ryan P, Irvine and Hogan JJ per Irvine J) 26 February 2016 [2016] IECA 59 (reaffirms Irish Law) In like manner, “good reason” to extend time limit narrowly construed (Forum Connemara Limited) CMG - Procurement Seminar - Dun Laoghaire - 18 October 2017

Forum Connemara Illustration of judicial application of strict limitation periods for institution of challenges in Public Procurement Classic preclusion on “approbating and reprobating” “Having one’s cake and eating it” not permitted Maintaining fundamental EU Procurement Law principles and objectives including rapid and effective remedies Primary concerns of EU Procurement Law Strict time limits Rapid and effective remedies Prompt award of Public Contracts Public interest/public good Interests of successful bidders Law protects not only individual EOs but also winning bidders, CAs and public interest (some comfort in this but don’t drop guard) CMG – Procurement Seminar - Dun Laoghaire - 18 October 2017

Managing Information RPS Consulting Engineers Limited v Kildare County Council, High Court of Ireland (Humphreys J) 15 February 2016 [2016] IEHC 113 RPS a controversial decision Sets out rationale for standstill information and high level of information detailed to be furnished in notification letter/standstill/Alcatel notice – adhere to that Holds that Article 41(2) right to request (further) information stands independently from information management process in standstill regime and was “directly applicable” – see new Regulation 55(2) of the 2016 Regulations But rejects notion that debriefing meeting after notification letters or further information provided on foot of specific request would restart clock for purposes of 30 day limitation period - beware relying on this – may not be consistent with EU Law CMG - Procurement Seminar - Dun Laoghaire - 18 October 2017

Managing Information RPS Consulting Engineers Limited v Kildare County Council, High Court of Ireland (Humphreys J) 15 February 2016 [2016] IEHC 113 May render difficult conduct of processes including as to timing limitation periods confidentiality Potential for tension between EU Procurement Law (including confidentiality) and Procurement Information Entitlements Further potential for tension between EU Procurement Law (including confidentiality) and other Information Entitlements such as Access to Information on Environment (EU derived) and Freedom of Information (Non-EU derived) CMG - Procurement Seminar - Dun Laoghaire - 18 October 2017

Whether Damages an Adequate Remedy Increasing tendency for courts to conclude that monetary damages adequately compensate wronged plaintiff or aggrieved party OpenView Security Solutions Ltd v London Borough of Merton Council English High Court (Stuart-Smith J) 28 September 2015 [2015] EWHC 2694 (TCC) Some cases querying whether damages ought to be allowed for loss of reputation and losing an important bid NATS (Services) Ltd v Gatwick Airport Ltd [2014] EWHC 3133 (TCC) (global exporter of air traffic services and competing in tender competitions across world Powerteam Electrical Services Limited (t/a Omexom) v Electricity Supply Board, High Court of Ireland, Costello J, 12 February 2016 [2016] IEHC 87 CMG - Procurement Seminar - Dun Laoghaire - 18 October 2017

OpenView: Whether Damages an Adequate Remedy In OpenView the Court examined this in detail and held that there need be no preordained limit upon when and in what circumstances damages may be regarded as an inadequate remedy, categories of inadequacy need not be closed- rather, constantly evolving, difficulty of assessment in individual cases did not of itself demonstrate that damages once assessed would be inadequate, the Court was not convinced that a framework contract should give rise to particular difficulties and normal principles suggested that damages should be awarded on the basis of the contracting authority’s minimum or least onerous obligation, it would be unjust to lead a party to its remedy in damages if damages were by definition an inadequate remedy. The Court reiterated the view of most courts that difficulty of assessment should not deter a Court from measuring damages where damages appropriate There were many variables which fed into a “loss of chance” calculation CMG - Procurement Seminar - Dun Laoghaire - 18 October 2017

OpenView – Whether Damages an Adequate Remedy If procurement was limited to two tenderers there may be circumstances in which, even at an interim suspension stage, the Court could be confident that if the impugned successful tenderer had not been awarded the contract the aggrieved one would have been so awarded The more tenderers there were, the less certain that might be – leading to a discounting of aggrieved tenderer’s chance when calculating damages The mere fact that damages will be for loss of a chance and would be assessed as such is not in itself evidence that the damages are an inadequate remedy CMG - Procurement Seminar - Dun Laoghaire - 18 October 2017

OpenView – Loss of Reputation On occasion courts have referred to “loss of reputation” as possible basis for holding damages were not an adequate remedy Underlying assumption appeared to be that “loss of reputation” may be a real commercial disadvantage with one that is not capable of being included in any assessment of damages – that was held “most likely to apply because of the application of principles of remoteness” Principles of remoteness intended to be a principled response to the assertion of losses that are too speculative to justify recovery under a just and adequate system of law Certain English cases recognise “loss of reputation” Alstom Transport Ltd v Eurostar International Limited [2010] EWHC 2747 (Ch) DWF LLP v Secretary of State for Business Innovation and Skills [2014] EWCA Civ 900 NATS (Services) Ltd v Gatwick Airport Ltd [2014] EWHC 3133 (TCC) (global exporter of air traffic services and competing in tender competitions across world CMG - Procurement Seminar - Dun Laoghaire - 18 October 2017

OpenView – Loss of Reputation Court in OpenView held no touchstone or test be applied in relation to loss of reputation Court not persuaded that loss of reputation as such affected question of adequacy of damages as a remedy Saw no reason why in general “reputation” of a tendering party should affect the giving or withholding of interim relief Damage for “loss of reputation” may be different in respect of a not for profit organisation – in Bristol Missing Link Ltd v Bristol City Council [2015] EWHC 876 (TCC) (very existence of charitable body at stake) In general, “loss of reputation” does not normally sound in damages because loss is speculative and legally too remote CMG - Procurement Seminar - Dun Laoghaire - 18 October 2017

OpenView – Loss of Reputation Court suggests following criteria in respect of “loss of reputation “ where it may be a good reason for holding that damages which would otherwise be adequate would be an inadequate remedy for American Cyanamid purposes: loss of reputation is unlikely to be of consequence in considering the adequacy of damages unless the Court is left with a reasonable degree of confidence that a failure to impose interim relief would lead to financial losses that would be significant and irrecoverable as damages; the burden of proof lies upon the parties supporting the continuance of the automatic suspension and standard of proof is that there is (at least) a real prospect of loss that would retrospectively be identifiable as being attributable to the loss of the contract as issued but not recoverable in damages; and the relevant person must generally be shown to be affected by the loss of reputation is the future provider of profitable work In general loss of reputation is not a material fact as to lifting the automatic suspension and Court can assess damages in respect of it In OpenView (competing tenderers for provision of CCTV and number plate recognition systems) held that loss of reputation was not a material factor and equally public interest in earlier awarding of contract (road accidents, revenue to local authorities from fines etc) could also be overstated On facts held that monetary damages an adequate remedy CMG - Procurement Seminar - Dun Laoghaire - 18 October 2017

Loss of Reputation Powerteam Electrical Services Limited (t/a Omexom) v Electricity Supply Board, High Court of Ireland, Costello J, 12 February 2016 [2016] IEHC 87 (cool towards damages for loss of reputation) Stressed public interest in prompt award of contracts CMG - Procurement Seminar - Dun Laoghaire - 18 October 2017

Freedom of Information Act and Procurement – What can you disclose
Freedom of Information Act and Procurement – What can you disclose? – What information is strictly exempt from publication? CMG - Procurement Seminar - Dun Laoghaire - 18 October 2017

FOI Act and Procurement
Freedom of Information Act 2014 Section 11(1) bestows general right of access in terms of the fundamental principle that every person has the right to and shall, on request, be offered access to any record held by a public body (repeating right under 1997 Act) The term “record” very widely defined Note: no requirement of “locus standi” (proximity of legal interest) as to Section 12 requests – busybody can apply But under Section 10 right of person to information regarding acts of FOI bodies is in respect of acts affecting such person (useful tool in Procurement) (effectively “locus standi” requirement) CMG - Procurement Seminar - Dun Laoghaire - 18 October 2017

Request for Access/Response Times Section 12 prescribes request must be in writing or in certain other forms, addressed to the head of the public body concerned and stating that the request is being made under the Act It must give sufficient particulars relating to information required and specify form or manner of access required Section 13 – as soon as may be but not later than 4 weeks Longer if Section 38, former Section 29 (third party consultation) Section 19: failure to respond is deemed decision Above response times mean requested highly unlikely to receive information before and of Standstill period (14/16 days) Limitation period (30 days) CMG - Procurement Seminar - Dun Laoghaire - 18 October 2017

Request for Access Substantive reply must specify decision made date on which it was made name and designation of person in public body concerned dealing with request (unless disclosure could prejudice safety or well-being of that person) date on which and form and manner in which access to record concerned would be offered and amount of any fee payable if request refused, reasons for such refusal and provisions of Act pursuant to which request refused if access deferred, reasons for deferral and period of such deferral particulars of rights of review and appeal under Act, if an unfavourable resopnse is given the decision must be objective – regardless of motive or suspected motive of requester period of time for consideration of request may be extended for up to a period of four weeks if request relates to such number of records or the number of other records under Section 12 relating to such records, is such that compliance within the time period is not reasonably possible Notice must be given to the requester of any extension Note in context of what required under Regulation 84 and compare Standstill letter under 2010 Regulations (obvious trap for CAs and ensure not inconsistent on facts) CMG - Procurement Seminar - Dun Laoghaire - 18 October 2017

Exempt Records Under Part 4 of the Act dealing with “exempt records”, a public body is given discretion to refuse a Section 12 request for access for certain records but in other cases must refuse access Those records are often records as to State concern and include matters before Government meetings (must refuse) those relating to matters concerning the deliberations of the public body concerned where, in the opinion of head, the public interest would be better served by granting access (may refuse) relating to functions and negotiations of public bodies where, in opinion of head, disclosure would prejudice effectiveness of enquiries conducted by public body and have adverse effect on performance of any of its functions or disclose plans, procedures or instructions concerning negotiations carried out by or on behalf of the Government or a public body (may refuse). However, where a head is of the opinion that public interest is better served by granting access, request may then be granted access could, in opinion of head be reasonably expected to prejudice or impair law enforcement and public safety (may refuse) (Section 32) records where, in opinion of head, access could be reasonably expected to affect adversely the security, defence or international relations of the State or matters relating to Northern Ireland (may refuse) (Section 33) CMG - Procurement Seminar - Dun Laoghaire - 18 October 2017

Exempt Records records which, in opinion of head, contain information relating to research to be carried out by a public body, disclosure of which could cause serious disadvantage or records containing information disclosure of which could prejudice cultural, heritage or natural resources (may refuse). Again, public interest override (Section 39) records to which access, in opinion of head, could have adverse effect on financial and economic interest of the State or information premature disclosure of which could result in undue disturbance of the business of the State or result in unwarranted benefit or loss to person or class of persons (may refuse but public interest override) (Section 40) records exempt from production in court on ground of legal professional privilege or where release would constitute contempt of court or papers belonging to or considered by a House of the Oireachtas (may refuse) (Section 31) Shall refuse to disclose records if disclosure prohibited by law of EU or any enactment (Section 40(1)(a)) (note Procurement Law is EU based) CMG - Procurement Seminar - Dun Laoghaire - 18 October 2017

Exempt Records Section 35 – Information obtained in confidence Section 35(1) information given in to FOI body in confidence, and on the understanding that it would be treated by it as confidential and, in opinion of head, the disclosure of which likely to prejudice giving to public body of further similar information and is of importance to the body (may refuse) (subject to public interest override) (Section 35(1)(a)) “(b) disclosure of information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) in Part 1 or 2 of Schedule 3 of an enactment specified in that Schedule) or otherwise by law.” Schedule 3 to the Act outlines sections from various enactments that prohibit the disclosure of confidential information that are not to be considered as constituting a breach of duty of confidence for the purposes of Section 35(1)(b) Note also EU Law protecting confidentiality / commercial sensitivity of tender information CMG - Procurement Seminar - Dun Laoghaire - 18 October 2017

Exempt Records CA not to disclose information forwarded to it by EOs when designated as confidential including technical or trade secrets and confidential aspects of tenders (Reg 21) Grounds for withholding from publication (Regulations 50 and 55) : - impede law enforcement contrary to public interest harm legitimate commercial interests of a particular EO might prejudice fair competition between EOs CMG - Procurement Seminar - Dun Laoghaire - 18 October 2017

RPS – Supplemental Information Request (Old Article 41(2) of 2004 Directive) RPS held that unlawful and contrary to EU law to have purported to repeal this in 2010 standstill regime (2010 Remedies Regulations) Now restored at Regulation 55(2) Note also breadth of Regulation 21 (Confidentiality of tender information) CMG - Procurement Seminar - Dun Laoghaire - 18 October 2017

Confidential Information Regime of information and Information Commissioner numerous Determinations OIC Guidance on Section 35 (March 2016) Guidance on Section 36 (February 2016) CMG - Procurement Seminar - Dun Laoghaire - June 2016

Exempt Records – Commercially Sensitive Information (1) Records containing commercially sensitive information unless the person to whom record relates consents in writing to access being granted (public interest override) (Section 36) Applies to: - trade secrets - financial, commercial, scientific, technical or other information disclosure of which could reasonably be expected to result in material financial loss or gain to person to whom information relates or could prejudice competitive position of that person in conduct of his or her profession/business/occupation - information which could prejudice conduct or outcome of contractual negotiations All subject to public interest override (compare Section 35 - so subject only in part) CMG - Procurement Seminar - Dun Laoghaire - 18 October 2017

Exempt Records – Commercially Sensitive (2) CA must grant if person to whom records relate information available to the public record relates only to requester it was given to FOI body by person to whom relates and person was informed by FOI body before given that would or might be made available to public CMG - Procurement Seminar - Dun Laoghaire - 18 October 2017

Exempt Records – Commercially Sensitive (3) Like Sections 35 and 37, subject to Section 38 (Consultation with Third Parties) Subject to public interest override In main public interest override consider older Determinations by Information Commissioner together with modern general obligation to protect confidentiality of tender information especially commercially sensitive information Consider also which elements may be protected by EU Law and which may prohibit disclosure - difficult weighing process CMG - Procurement Seminar - Dun Laoghaire - 18 October 2017

Exempt Records In Sections 35, 36 and 37 (Personal Information) three instances, access may be granted in the public interest in accordance with the consultation procedure laid down in Section 38 – three weeks for written observations to be filed by a party informed public body minded to disclose Head shall refuse grant of a request if disclosure prohibited by an enactment or if non-disclosure of the record is authorised by such enactment in certain circumstances and cases where head would refuse to disclose the record Particular difficulty is with access to tenders in light of Section 35 and 36 of the Act Significant determinations by Commissioner Case – Henry Ford and Others Case – Mark Henry and Others Case – McKeever Rowan Solicitors and Department of Finance These processes usually much to slow for Procurement Law especially as to Interim Measures/ Interlocutory Relief and lifting Automatic Suspension Those very delays prompted Standstill regime under 2007 Directives and 2010 Remedies Regulations (fast forward information in Standstill / Alcatel letters/notices) CMG - Procurement Seminar - Dun Laoghaire - 18 October 2017

Exempt Records Some significant points from these Determinations by Information Commissioner acknowledgment of risk of disclosure of information that parties intended to keep confidential but this does not of itself preclude mutual understanding of confidence with respect to tenders for purposes of Section 35(1)(a) as to fees and payment information for services to State and where successful tenderer’s proposed fees become contract rates, public body could not reasonably be expected to keep that information or other related contract terms confidential in the absence of exceptional circumstances when contract awarded, successful tenderer information loses confidentiality as to fee rates and other details of financial dimensions and nature of services that will be provided in such cases a significant need for openness and accountability requires disclosure even though acknowledged that that could be harmful to competitive position of affected parties But subject to EU Law CMG - Procurement Seminar - Dun Laoghaire - 18 October 2017

Information Access – Mix of Irish and EU Law Specific provisions in 2014 Directive (see Reg 55(2) of 2016 Regulations) Still miscellany of national provisions Freedom of Information Acts EC (Access to Information on the Environment) Regulations and Directive Aarhus Convention Case Law including supremacy of EU Law Case C-450/06 Varec v Belgium [2008] ECR I-581 Veolia ES Nottinghamshire Ltd v Nottinghamshire County Council [2010] EWCA Civ 1214 (reversing High Court (Cranston J)) CMG - Procurement Seminar - Dun Laoghaire - 18 October 2017

Information Access Still difficulty in gaining access and against background of very short time limits/limitation periods Roche Diagnostics Ltd v Mid Yorkshire Hospitals NHS Trust [2013] EWHC 933 (TCC) (early discovery still an exception but more readily available in Procurement Law especially for interim interlocutory applications) CMG - Procurement Seminar - Dun Laoghaire - 18 October 2017

Information Access Contrast in Northern Ireland Scotts Electrical Services Ltd v Northern Ireland Water Limited [2012] NIQB 7 (Weatherup J) (Older law including Stewart v Ratnar Safe Company(1907) 41 ILTR 74 – Order for discovery of documents / early discovery only in exceptional circumstances and not when writ issued as a “fishing bill”) Now also in Northern Ireland John Sisk & Son (Holdings) Ltd v Western Health & Social Care Trust (High Court, QBD Burgess J, 18 February 2014, applying Roche) CMG - Procurement Seminar - Dun Laoghaire - 18 October 2017

Information Access However, in Ireland Court of Appeal decision in BAM PPP Infrastructure Cooperatie UA v National Treasury Management Agency [2015] IECA 246 where Court of Appeal took cautious approach and was reluctant to categorise discovery applications in Public Procurement as different from others Court held: primary test whether documents sought relevant to issues between parties and whether discovery necessary for fair disposal of those issues relevance determined by reference to pleadings nothing in older case law intended to qualify principle that documents sought on discovery must be relevant, directly or indirectly application for discovery must show reasonable for Court to suppose that documents contain relevant information applicant not entitled to discovery based on speculation in certain circumstances, too wide ranging order for discovery may be obstacle for disposal of proceedings crucial question : whether discovery necessary for “disposing fairly of the cause or matter” must be some proportionality between extent or volume of documents to be discovered and degree to which documents likely to advance the case of the applicant, and discovery could become oppressive and Court should not allow to be used as tactic in war between parties CMG - Procurement Seminar - Dun Laoghaire - 18 October 2017

Information Access – Confidentiality Rings Information made available in confidence to lawyers only Real difficulty when lawyer cannot discuss with own client – puts great responsibility on lawyer and potential unfairness to client if lawyer cannot practically interpret the business import of information as distinct from legal dimensions of information CMG - Procurement Seminar - Dun Laoghaire - 18 October 2017

Access to Information – Regulation 84 of Irish Regulations 2016 and Article 84 of the 2014 Directive Regulation 84 and Article 84.1 – written procurement report required for every contract and must contain elements in Reg 84(1) / Article 84(1) Similar to standstill notice (but across all candidates / tenderers) plus some other elements including justification for use of Competitive Procedure with Negotiation and Competitive Dialogue, justification for use of Negotiated Procedure without prior publication reasons why no award made conflicts of interest detected and subsequent measures taken CMG - Procurement Seminar - Dun Laoghaire - 18 October 2017

Access to Information – Regulation 84 of Irish Regulations 2016 and Article 84 of the 2014 Directive Reg 84(4) / Article 84.2 – obligation on contracting authorities to “document the progress of procurement procedures, whether or not those are concluded by electronic means” Reg 84(4) – must record progress of all procurements and “justify decisions at all stages” including communication with EOs internal deliberations (would presumably include with and between evaluators and their comments) preparation of procurement documents (possibly including drafts?) dialogue or negotiation (presumably including CD or CPN) selection and award of contract and CA must retain for at least 3 years Vast array of information and opportunities for challenge CMG - Procurement Seminar - Dun Laoghaire - 18 October 2017

Access to Information – Regulation 84 of Irish Regulations 2016 and Article 84 of the 2014 Directive This may be mere reporting obligation or may also extend to fuller real time document obligations (latter better view if keen to “stay out of trouble”) Regulation 84 of Regulations may be open to interpretation Freedom of Information Acts and other legislation such as Data Protection or Access to Information on the Environment may also be relevant, if usually slow But fast if applying under Procurement legislation e.g. Regulation 55(2) of Procurement Regulations 2016 Compare Section 10 FOI Act and obligations under Regulation 84 Perils for CAs : inconsistencies (even possible or apparent) between Regulation 84 records and reports general documentation under FOI better not to be generating Regulation 84 records after request for access/challenge inadequate documentation CMG - Procurement Seminar - Dun Laoghaire - 18 October 2017

Hot Press Legislation: • European Union (Award of Public Authority Contracts) Regulations 2016 (SI No 284 of 2016) (Irish Public Sector Rrgulations) • European Union (Award of Contracts by Utility Undertakings) Regulations 2016 (SI No 286 of 2016) (Irish Utility Sector Regulations) •European Union (Award of Concession Contracts) Regulations 2017 (SI No 203 of 2017) (Irish Concessions Regulations) • European Communities (Public Authorities' Contracts) (Review Procedures) (Amendment) Regulations 2017 (SI No 327 of 2017) (Amending Public Remedies Regulations) • European Communities (Award of Contracts by Utility Undertakings) (Review Procedures) (Amendment) Regulations 2017 (SI No 328 of 2017) (Amending Utilities Remedies Regulations) •European Union (Award of Concession Contracts) (Review Procedures) Regulations 2017 (SI No 326 of 2017) (Concessions Remedies Regilations) CMG - Procurement Seminar - Dun Laoghaire – 18th October 2017

Hot Press (2) Cases Copymoore Ltd and Others v Commissioners of Public Works in Ireland , 11 November 2016 , High Court of Ireland (McDermott J) [2016] IEHC 709 (Court seeming to hold that Circular 10/14 created enforceable rights and other dimensions) Nuclear Decommissioning Authority v EnergySolutions EU Ltd (now called ATK Energy EU Ltd) UK Supreme Court, 11 April 2017 [2017] UKSC 34 [2017]4 All ER 1 (Francovich damages in Procurement Law) CMG - Procurement Seminar - Dun Laoghaire – 18th October 2017

E: patrick.mcgovern54@gmail.com
Thank You Patrick McGovern Retired Partner Arthur Cox E:

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