Introduction to the EU Procurement Regulations Florence Gregg, figpc ltd E: [email protected]...
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Transcript of Introduction to the EU Procurement Regulations Florence Gregg, figpc ltd E: [email protected]...
Introduction to the EU Procurement Regulations
Florence Gregg, figpc ltdE: [email protected] M:07834 322 134
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
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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)
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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
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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
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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]
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Pre- Qual
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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]
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Pre- Qual
Tender
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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]
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Tender
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
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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]
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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
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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
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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
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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]
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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
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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
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‘New’ Remedies (post 20.12.09)
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
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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
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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
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Any Questions?
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Thank you
Florence Gregg
figpc ltd
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