Precision in analysis and advice For the seminar, Bold Procurement , - - PowerPoint PPT Presentation

Precision in analysis and advice

For the seminar, Bold Procurement , 15 June 2012

Alan Bates Barrister abates@monckton.com

Bold, not reckless

• Procurement law highly precise
• Close relationship with State aid rules –

though the rules (e.g. Teckal are not identical)

• Scope for legislative change or helpful

guidance from the European Commission is limited –principles developed in the case-law of the ECJ

• Maintain a level playing field for EU/EEA

trade – Social value not a cloak for discrimination and advantaging local/ national producers

Restructuring services – Planning the bite point

• Need to consider the Teckal test very

carefully and having regard to likely developments in the case-law

• Teckal decides the point at which a

procurement takes place

• Consider: ownership; control; activities
• Ill-informed choices of certain models
• f ownership/control can cause

problems

• State aid also potentially relevant

Restructuring services – State aid considerations

• Possible advantages to the new

entity in competition with other economic actors

• Loans
• Contract awards
• Transfers of assets / equipment
• Transfers of expertise
• Transfer pricing and transparency

Social procurement – Non-discrimination

• This is absolutely key – Criteria must

be non-discriminatory

• Not requiring employment of only local

workers, young people, etc

• Possible solutions:
• Common technical standards
• Smaller contracts
• Non-model/method-specific

legitimate social value objectives (eg for employee/community involvement)

Dual objective procurement

• Does the purchasing authority

have more than one statutory or

• ther object that it is seeking to

meet?

• Can a model be designed

whereby the social value is part

• f what is being procured, rather

than merely the way that what is being procured is being provided?

Governance and involvement structures

• Do not have to be discriminatory
• n nationality or against certain

models of provider

• Legitimate to specific community

consultation / involvement

• Need to be cautious about

information sharing and State aid (‘imputable to the State’)

Stop disadvantaging social and small providers

• Avoid PQQs and unnecessary

qualification criteria

• Avoid unnecessary complexity and

service-irrelevant criteria (e.g. diversity and environmental standards) assessed on a ‘tick-box’ approach

• Use criteria which reflect genuine

local needs and give credit for social value and innovation

Take-away points

• Front-loading
• Forward planning
• Precise technical consideration and

advice

• Possibility of establishing local

forum for pre-tender news and discussions to inform the development of appropriate selection criteria – This can be done in a lawful way

Thank you

For more information www.monckton.com abates@monckton.com