EU PROCUREMENT

EU PROCUREMENT

1. LEGAL FRAMEWORK

   • TFEU Freedoms x3
     • 1.Goods
     • 2. Establishment
     • 3. Services;
   • EU Principles x5
     • Equal treatment
     • Transparency
     • Non-discrimination
     • Mutual recognition
     • Proportionality
   • New Directives
     • PSD 2014/24/EU
     • UPD 2014/25/EU
     • Concession Contracts 2014/23/EU

2. WHO MUST COMPLY?

   • CA (Contracting Authorities)
     • Government departments
     • Local authorities
     • Police and fire authorities
     • NHS Trusts
     • NDPBs

3. WHICH CONTRACTS ARE COVERED?

   • Public Supply Contracts
   • Public Works Contract
   • PSC or PWC under a Framework Agreement (FA) or Dynamic Purchasing System (DPS)
   • AND where the estimated value of the contract/framework is = or > financial threshold (net of VAT).
   • Additional UK national rules Part 4 + Part 5

4. IN-HOUSE & POOLED SERVICES

   • DLO's and DSO's generally exempt
   • Teckal Exemption (in-house companies)
     • Control Test
     • Activities Test
     • Private Capital Participation
   • Hamburg Exemption (pooled funding)
     • Control Test
     • Public Interest
     • Open Market Test

5. ADVERTISING

   • Contracts Caught: OJEU NOTICE
   • Prior Information Note (PIN)
     • PIN (12 Month period) call for competition

6. PROCEDURES

   • Open Procedure (OP)
   • Restricted Procedure (RP)
   • Competitive Dialogue (CDP)
   • Competitive Procedure with Negotiation (CP-w-N)
   • Innovation Partnership procedure (IPP)
     • partnership structured with progressive phases
   • Accelerated Restricted Procedure (ARP)
   • Accelerated CD + CP-w-N

7. PRINCIPLES OF CONTRACT

8. SELECTION (PRE-QUALIFICATION)

   • Mandatory Exclusion Grounds
     • Organised crime, corruption, fraud or money laundering
   • Discretionary Exclusion
     • bankruptcy or professional misconduct
   • Note new rules of self-cleaning
   • PQQ
     • Minimum Turnover requirement max x2 of contract value
     • PQQ stage prohibited for
       • sub-threshold contracts (apart from sub-threshold works valued between £173,934 (£111,676 for central government) and £4,322,012)
       • LTR contracts valued between £173,934 (£111,676 for central government) and the sterling equivalent of EU 750k.

9. AWARD PROCEDURE TIMESCALES

   • OP
     • Min time between OJEU N and tenders = 52 days (40 if electronic).
     • PIN can reduce further if published ast least 52 days before and no > than 12 months before OJEU N.
   • RP
     • Min time between invitation and tender PQQ = 37 (30 if electronically)
   • ARP
     • Only if 'urgency': 15 days for receipt of PQQs (10 days if electronic OJEU) THEN 10 days for receipt of tenders.
   • CDP + CP-w-N
     • Min time between invitation and Dialogue / Negotiation / PQQ = 37 Days (30 if electronically)
   • Acc CDP + CP-w-N
     • Min time between invitation and Negotiation / PQQ = 15 (10 electronically)
   • IPP

10. EVALUATION OF BIDS AND AWARD STAGE

    • Now based on MEAT (Most Economically Advantageous Tender)
      • must include specific reference to social and environmental criteria
      • Alcatel 10 day standstill applies
      • Must be clear distinction between selection criteria and award criteria

11. RENEWALS, EXTENSIONS & MATERIAL CHANGES

    • New Contract if a 'material change'
      • Codified 'Pressetext' Principles
        • 1. Introducing conditions which would have resulted in different tenderer outcome
        • 2. Alter contract scope
        • 3. economic balance changed in favour of contractor

12. FRAMEWORKS

    • Cannot exceed 4 years period
    • Call-off contracts achieved in 2 ways
      • 1. Direct call-offs
      • 2. Mini-competitions

13. ENFORCEMENT & REMEDIES

    • Options
      • 1. Damages
      • 2. Suspension of Award (if contract not entered in to)
      • 3.Contract deemed 'ineffective' + civil financial penalties
    • Requirements
      • Complainant must start proceedings within 30 days of when it “knew of ought to have known that grounds for starting the proceedings had arisen”
      • For an an Ineffectiveness challenge
        • If no OJEU notice: proceedings must start within 6 months of contract being entered in to
        • If was OJEU notice: 30 days of CAN
        • Note: Voluntary Transparency Notice

14. WHICH CONTRACTS ARE NOT COVERED?

    • Expressly Excluded
    • < £ Threshold (net of VAT)
      • PWC £4,322,012
      • PSC central govt £111,676
      • PSC by sub-central £173,934
      • LTR for Annex XIV listed procurements 750,000 Euros
    • Light Touch Regime
      • LTR for Annex XIV listed
      • Above €750,000 c-b interest
      • Below €750,000 not c-b interest
    • Note Mixed Contracts + Aggregation Rules + Realistic Prospect caveat
    • Development Agreements

15. MINIMUMS FOR TENDER

    • *Competitive Dialogue (3)
    • Restricted (5)
    • Competitive Procedure with Negotiation (3)