Public procurement law recent developments Christopher Brown - - PowerPoint PPT Presentation

Public procurement law – recent developments

Christopher Brown

cbrown@matrixlaw.co.uk @CBrownMatrix

Overview

• The reform agenda
• Recent CJEU developments
• Recent domestic litigation

The reform agenda

• December 2011: Commission proposals for 3

new directives – utilities, procurement and concessions

• Protracted legislative process
• Political agreement reached in July 2013
• Today’s focus is on public sector directive;

NB OJEU advertising of concessions contracts worth > €5m

• NB remedies directive remains in place

The reform agenda

• Most significant ‘innovations’:

– More scope for using the negotiated procedure for non-“off the shelf” purchasing – Simplification of rules on Dynamic Purchasing Systems (no need to advertise call-offs) – “Innovation Partnerships” – Preliminary market consultation permitted – Abolition of Part A/Part B distinction (NB treatment of health/social care services etc) – Lighter regime for “sub-central” CAs

The reform agenda

– Reducing burden: supplier self-declarations; e- marketplaces expressly permitted; time limits – E-communication/e-procurement will be mandatory 4.5 years after directive is adopted – Grounds for exclusion – Ability to give CAs power to reserve award of certain contracts to mutuals/social enterprises – Assistance to SMEs encouraged (e.g t/o cap; division into lots) – Ability to take account of life-cycle costs

The reform agenda

• ‘Codifications’ of CJEU case law:

– Material changes to contracts post-award: Pressetext – The Teckal in-house exception; NB

• 80% figure
• Public-public cooperation (Hamburg; Azienda)

– Relevance of experience (Lianakis); NB CA consent re replacement of staff – Principle of proportionality – Abnormally low tenders(Slovensko; cf Varney)

The reform agenda

• Adoption and implementation:

– Directives likely to be adopted by early 2014 – MS will have 2 years to transpose – UK likely to transpose (“copy out”) ASAP; NB various issues left to Member States, e.g.

• termination of contracts?
• What to do about health, social and cultural services?
• Legislate for mandatory exclusions?
• Subcontracting?
• NB review of thresholds within 3 years

Recent CJEU judgments

• Cases C-197 and 203/11Libert

– Regional law regulating sale/lease of properties – Does a provision requiring property developers to provide social housing to public authorities give rise to a public works contract? – CJEU doubtful that a relevant contract existed:

• bligation is imposed by national law, w/o there

being any agreement defining works/Ts&Cs – Not open to housing authority to choose developer – Some resemblance to s106 agreements

Recent CJEU judgments

• C-336/12 Manova: non-discrimination rule

does not prevent CAs asking for certain docs that should have been included with tender

• C-100/12 Fastweb: right to challenge award

decisions by tenderers that do not themselves comply with all the (technical) requirements under the tender documentation

Recent domestic litigation

• Judgments on disclosure

– Roche Diagnostics – Pearson Driving Assessments

• Judgments on time limits (Uniplex; Sita)

– Nationwide Gritting Services

• Judgments lifting the prohibition on the contract being

awarded

– Lowry Bros Ltd v NI Water Ltd and Resource NI (NI) – Newcastle Upon Tyne Hospital NHS Foundation Trust (E&W) – Glasgow Rent Deposit and Support Scheme (Scot) – Clinical Solutions International (Scot)

• Judgment on scope for expert evidence

– BY Development Ltd & Ors v Covent Garden Market Authority

• Continued use of JR: R (RB) and Nash

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