EU PROCUREMENT

EU PROCUREMENT

LEGAL FRAMEWORK
1. TFEU Freedoms x3
  1. 1.Goods
  2. 2. Establishment
  3. 3. Services;
2. EU Principles x5
  1. Equal treatment
  2. Transparency
  3. Non-discrimination
  4. Mutual recognition
  5. Proportionality
3. New Directives
  1. PSD 2014/24/EU
  2. UPD 2014/25/EU
  3. Concession Contracts 2014/23/EU
WHO MUST COMPLY?
1. CA (Contracting Authorities)
  1. Government departments
  2. Local authorities
  3. Police and fire authorities
  4. NHS Trusts
  5. NDPBs
WHICH CONTRACTS ARE COVERED?
1. Public Supply Contracts
2. Public Works Contract
3. PSC or PWC under a Framework Agreement (FA) or Dynamic Purchasing System (DPS)
4. AND where the estimated value of the contract/framework is = or > financial threshold (net of VAT).
5. Additional UK national rules Part 4 + Part 5
IN-HOUSE & POOLED SERVICES
1. DLO's and DSO's generally exempt
2. Teckal Exemption (in-house companies)
  1. Control Test
  2. Activities Test
  3. Private Capital Participation
3. Hamburg Exemption (pooled funding)
  1. Control Test
  2. Public Interest
  3. Open Market Test
ADVERTISING
1. Contracts Caught: OJEU NOTICE
2. Prior Information Note (PIN)
  1. PIN (12 Month period) call for competition
PROCEDURES
1. Open Procedure (OP)
2. Restricted Procedure (RP)
3. Competitive Dialogue (CDP)
4. Competitive Procedure with Negotiation (CP-w-N)
5. Innovation Partnership procedure (IPP)
  1. partnership structured with progressive phases
6. Accelerated Restricted Procedure (ARP)
7. Accelerated CD + CP-w-N
PRINCIPLES OF CONTRACT
SELECTION (PRE-QUALIFICATION)
1. Mandatory Exclusion Grounds
  1. Organised crime, corruption, fraud or money laundering
2. Discretionary Exclusion
  1. bankruptcy or professional misconduct
3. Note new rules of self-cleaning
4. PQQ
  1. Minimum Turnover requirement max x2 of contract value
  2. PQQ stage prohibited for
    1. sub-threshold contracts (apart from sub-threshold works valued between £173,934 (£111,676 for central government) and £4,322,012)
    2. LTR contracts valued between £173,934 (£111,676 for central government) and the sterling equivalent of EU 750k.
AWARD PROCEDURE TIMESCALES
1. OP
  1. Min time between OJEU N and tenders = 52 days (40 if electronic).
  2. PIN can reduce further if published ast least 52 days before and no > than 12 months before OJEU N.
2. RP
  1. Min time between invitation and tender PQQ = 37 (30 if electronically)
3. ARP
  1. Only if 'urgency': 15 days for receipt of PQQs (10 days if electronic OJEU) THEN 10 days for receipt of tenders.
4. CDP + CP-w-N
  1. Min time between invitation and Dialogue / Negotiation / PQQ = 37 Days (30 if electronically)
5. Acc CDP + CP-w-N
  1. Min time between invitation and Negotiation / PQQ = 15 (10 electronically)
6. IPP
EVALUATION OF BIDS AND AWARD STAGE
1. Now based on MEAT (Most Economically Advantageous Tender)
  1. must include specific reference to social and environmental criteria
  2. Alcatel 10 day standstill applies
  3. Must be clear distinction between selection criteria and award criteria
RENEWALS, EXTENSIONS & MATERIAL CHANGES
1. New Contract if a 'material change'
  1. Codified 'Pressetext' Principles
    1. 1. Introducing conditions which would have resulted in different tenderer outcome
    2. 2. Alter contract scope
    3. 3. economic balance changed in favour of contractor
FRAMEWORKS
1. Cannot exceed 4 years period
2. Call-off contracts achieved in 2 ways
  1. 1. Direct call-offs
  2. 2. Mini-competitions
ENFORCEMENT & REMEDIES
1. Options
  1. 1. Damages
  2. 2. Suspension of Award (if contract not entered in to)
  3. 3.Contract deemed 'ineffective' + civil financial penalties
2. Requirements
  1. Complainant must start proceedings within 30 days of when it “knew of ought to have known that grounds for starting the proceedings had arisen”
  2. For an an Ineffectiveness challenge
    1. If no OJEU notice: proceedings must start within 6 months of contract being entered in to
    2. If was OJEU notice: 30 days of CAN
    3. Note: Voluntary Transparency Notice
WHICH CONTRACTS ARE NOT COVERED?
1. Expressly Excluded
2. < £ Threshold (net of VAT)
  1. PWC £4,322,012
  2. PSC central govt £111,676
  3. PSC by sub-central £173,934
  4. LTR for Annex XIV listed procurements 750,000 Euros
3. Light Touch Regime
  1. LTR for Annex XIV listed
  2. Above €750,000 c-b interest
  3. Below €750,000 not c-b interest
4. Note Mixed Contracts + Aggregation Rules + Realistic Prospect caveat
5. Development Agreements
MINIMUMS FOR TENDER
1. *Competitive Dialogue (3)
2. Restricted (5)
3. Competitive Procedure with Negotiation (3)

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