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A private hospital positioned in a municipality next to Bilbao challenged the procurements on the understanding that the Bilbao location requirement was unjustified and resistant to the principles of equal treatment and freedom of use of public procurement procedures.
It was relevant how the services covered through the contracts wasn't exclusively for patients who resided in Bilbao and covered patients coping with other nearby localities. Further, how the hospital facilities provided by the challenger, although not situated in Bilbao, satisfied all conditions with the procurements including being sufficiently close and accessible for patients, their own families and the general public health surgeons who had been required to travel there.
The Court agreed with all the challenger and concluded the location requirement within the specification for your hospitals to be positioned in Bilbao, which resulted within the automatic exclusion with the challenger, was resistant to the DirectiveБs rules on technical specifications, as applicable to Part B contracts particularly, Article 232, because it did not allow equal access for tenderers and was an unjustified obstacle to competition.
Although deciding is not surprising it serves to be a good reminder in the need for care when drafting specifications. This is just not only pertaining to location but generally to be sure your requirements are justified and don't pose an unnecessary obstacle to competition. It is worth noting that in such cases the court would not criticise the harder general proximity requirement inside the specification as that had been clearly justifiable even so the requirement being in Bilbao, that has been the only point that your challenger can't meet and generated its automatic exclusion, was unnecessary, unjustified as well as a step beyond the boundary.
Do we need to have every one of the procurement documents ready Бup frontБ?
This is one with the most common questions we're asked since publication in the Public Contracts Regulations 2015 БPCR 2015Б.
We formerly blogged about Regulation 531 on the PCR 2015, which requires contracting authorities to present unrestricted and full direct access totally free to the Бprocurement documentsБ through the date that the notice is published inside the OJEU commencing a procurement. The problem is ab muscles wide meaning of Бprocurement documentsБ, that is as follows:
Бprocurement documentБ means any document produced or called by the contracting authority to spell it out or determine elements with the procurement or even the procedure, such as the contract notice, the first sort information notice where it can be used as a method of calling for competition, the technical specifications, the descriptive document, proposed conditions of contract, formats with the presentation of documents by candidates and tenderers, info on generally applicable obligations and then any additional documents.
The breadth on the definition initially suggests which a contracting authority needs the PQQ, ITT, conditions of contract, specification etc ready for publication electronically on the first day. Obviously that is a step alteration of what may be common practice previously to organize the procurement documents using a linear, Бstage by stageБ, basis and contains caused considerable concern amongst contracting authorities. Could a bidder come up with a procurement challenge merely around the basis that one in the procurement documents has not been published electronically on day 1? How is it possible to create documents with respect of a negotiated or competitive dialogue process where, by definition, the specification and fine print will not be also known on the first day? Clients have flagged very legitimate concerns about confidentiality and security issues if full documentation for example specifications have to become published online while using OJEU.
The Crown Commercial Service has now issued some guidance and that is helpful to contracting authorities. It shows that you can go on a БpurposiveБ view from the definition of Бprocurement documentsБ knowning that Б where individual regulations reference Бprocurement documentsБ, what exactly is meant by that wording changes in accordance with the different stages on the process that continues to be reached.Б
The guidance procedes suggest that, at abdominal muscles early stages in the procurement, Б few if any Б from the procurement documents will probably be included from the definition, and, as being the procurement grows more crystallised, further documents will likely be generated and supplied. If this view is correct, it shows that contracting authorities can prepare and publish some with the key procurement documents following a OJEU notice, provided the description from the procurement given inside the OJEU notice and accompanying documents that happen to be published while using OJEU like any descriptive document or memorandum of info is sufficiently detailed permitting bidders to create a proper view in the nature, scope and scale on the procurement so that you can enable these to decide whether wish to take part inside the competition.
It isn't only schoolteachers who will be busy writing pages of reports right now of year; contracting authorities ought to do so too, as a result of Action Note 10/15, that has recently been issued from the Crown Commercial Service.
This Action Note pertains to all contracting authorities, and requirements them to submit online, by 10 July 2015, the requested information all public contracts and frameworks created in 2013 and 2014. Note that it doesn't extend to contracts called off from your framework.
The request is manufactured under Regulation 40 in the Public Contracts Regulations 2006 and thus, because the CCS highlights, compliance is suggested rather than discretionary.
The Action Note states that it is the last time the CCS expects to involve these reports; under Regulation 84 in the new Public Contracts Regulations 2015, you will find an obligation to hold reports, there isn't a obligation to deliver them to your CCS unless actually requested to accomplish this. The Action Note demonstrates that this is which means last number of annual reports contracting authorities will be instructed to make en masse, in the introduction of Regulation 84.
Details with the mechanism for producing reports online as well as the level of detail required is usually found within the Action Note.
Afraid so. Generally speaking, it can be an absolute desire for Regulation 53 on the Public Contracts Regulations 2015 PCR 2015 to produce electronic access in the date on the OJEU notice. The feedback we're getting is that represents a step alteration of previous practice, containing often been to please take a more sequential approach towards the drafting of procurement documents.
Arent there exemptions through the requirement?
We be aware that, while Regulations 533 and 4 do provide limited exemptions through the requirement for making the procurement documents electronically available, regardless of whether these do apply, the procurement documents still need being made available through the date on the OJEU notice via some alternative means.
What does unrestricted and full direct access totally free mean?
We have been asked on several occasions to recommend what Бunrestricted and full direct access clear of chargeБ means this will be the phrase employed in Regulation 53. There is no new help with this confirmed but we note that this phrase exactly mirrors wording from the old directive, in which there is some admittedly now rather old guidance. We advise third , old guidance see specifically paragraph 3.2.1 until anything new is published. The old guidance demonstrates that, nevertheless, there may not be any Бintermediary stageБ, a fairly easy registration requirement is acceptable just before downloading documents although ideally it has to be possible for bidders to easily view documents with no registration.
Can you amend the procurement documents whether they have already been published?
Another question we have been asked lots is how much scope there is certainly to change the procurement documents when they have been published, specially if this had for being done at speed in order to write the OJEU notice in compliance with Regulation 53. Obviously the perfect would be with the procurement documents for being as complete as you can on day 1 obviously going for a common sense approach; inside a negotiated process, for instance, it will never be possible to disclose final and complete conditions and terms at the beginning in the procurement.
That said, Recital 81 in the new Directive and Regulation 473 from the PCR 2015 do contemplate the opportunity of Б significant changes to your procurement documents Б provided the timetable is extended appropriately, so clearly a point of change is acceptable. However, changes towards the award criteria or core requirements would almost definitely require a different advertisement. The key test is whether or not the procurement is very changed with the supplementary information so it has moved outside on the scope with the original advertisement and suite of documents, in a way that, had they known just what the procurement would eventually have seemed like, suppliers in addition to those who bid could potentially are already interested.
This Act received Royal Assent with the end of March. In this post, we look at its relevance for procurement practitioners and suppliers alike.
The Act is wide-ranging in scope, but two particular sections are important coming from a public procurement perspective.
Section 39 in the Act, which got into force on 26 March 2015, increases the Secretary of State the ability to introduce regulations to impose duties on contracting authorities around streamlining and efficiency in public places procurement and setting up a level game for SMEs. A contracting authority will not likely be inside scope on the Act whether it is main functions are devolved functions in Scotland, Wales or Northern Ireland. The types of duties imposed can include:
duties to exercise functions pertaining to procurement within an efficient and timely manner;
DonБt throw your copy on the PCR 2006 away! Remember the PCR 2006 will still sign up for any procurements already started ahead of 26 February 2015 and inside a few cases, for instance health service contracts underneath the NHS Regulations even longer. So for some time youБll be working with two teams of Regulations, so ensure you know which of one's procurements is following which.
Ensure your staff be aware of them and so are trained - see below as weБve got a bit of practical seminars for the way to aid this.
There is a large amount to fully understand, not just in prepare for that big change but additionally to ensure you are pursuing the new regime correctly once it really is in force. To help you, the procurement team only at Mills Reeve is owning a series of free half-day, practical seminars in April, in all of our Cambridge, London, Birmingham, Norwich and Manchester offices. If you havent contacted us already and need an invite, please email, or it is possible to register to get procurement updates and seminar invitations at /signup
The wait has finished: the ultimate version in the Public Contracts Regulations 2015 recently been published; these can come into force on 26 February 2015. You can access a copy with the new regulations here.
We are inside process of analysing the ultimate draft, and is going to be blogging again very shortly within the changes that are already made, techniques look out to the.
We can also be finalising details for our number of free half-day seminars about the Public Contracts Regulations 2015, which we be prepared to hold in this Cambridge, London, Birmingham, Norwich and Manchester offices soon. Please email me at if you would really like to receive a party's invitation for these.
What, more procurement regulations?! The SBEE Act Regulations 2015
Our Countdown to Law-nch series has to date focussed for the draft Public Contracts Regulations 2015. Although the GovernmentБs response towards the consultation within the draft Regulations was published on 30th January, up to now we still no definite date because of their coming into force. The consultation response just is the term for early 2015 but we've heard within the grapevine the Cabinet Office might be working towards the end of February 2015 to be a timetable. Look out for further web sites as soon as more concrete details are available.
We are thus turning our attention this week on the БotherБ procurement regulations and, pursuing the announcement from the Cabinet Office of that policy statement, the way the government plans to use its new powers under sections 39 and 40 with the Small Business, Enterprise Employment Bill this link is towards the latest draft as brought forward yesterday from Committee stage inside House of Lords. The SBEE Bill is making its way throughout the legislative process and it is expected to become law within the not too distant future.
Section 39 allows the government to create a second raft of regulations governing public procurement, geared towards implementing Lord YoungБs policy drive to encourage smaller than average medium sized players within the market.
Section 39 is extremely broad and essentially provides each government the power to generate whatever regulations it sees fit regarding the way contracting authorities exercise their procurement functions like the management of contracts whenever they have been put into. It contains an illustrative list in the sorts of duties the regulations might cover, for instance:
a responsibility to procure inside a timely and efficient way;
duties throughout the procurement process, including timescales and pre-market engagement;
duties to generate information and procurement documentation available at no cost;
a duty to take invoices by electronic means; and
a duty to check and set of compliance.
There may be a consultation, for the back of that this government has published a few illustrative regulations that offer us a taster with the likely direction of travel. These regulations will sign up for above-threshold procurements except the procurement of health services covered through the NHS Procurement, Patient Choice and Competition no 2 Regulations 2013 the БNHS RegulationsБ all of which will bind all contracting authorities covered from the Public Contracts Regulations 2015, with the exception of maintained schools/Academies.
The governmentБs general approach on the Public Contracts Regulations 2015 plus in implementing EU law generally is always to implement the parent EU directive as minimally as you can and to go on a Бcopy outБ strategy to avoid the likelihood of БgoldplatingБ exceeding the regulatory requirements from the directive itself.
It is often a mark on the importance the federal government places about the SME agenda plus the Lord Young reforms that, in this region, it really is prepared to go rather more than the directive itself required. This is demonstrated, one example is, from the inclusion of draft Regulations 105 to 109 inside the Public Contracts Regulations 2015, which for your first time will regulate under-threshold contracts, and through these illustrative SBEE Act regulations built a good deal in the evening minimum requirements with the parent directive.
The first illustrative regulation will never impose a total requirement to make use of pre-market engagement, however it will require any contracting authority choosing this route to take action in a manner that Бincreases knowledge of and fascination with biddingБ by smaller companies and social value enterprises, Бand other economic operatorsБ which on our reading must make reference to all potential suppliers inside the market. This is taking regulation a good deal more than is required by draft Regulation 40 in the Public Contracts Regulations 2015, which already covers premarket engagement. Given that there are going to be an obligation to report on what sort of SBEE Act regulations are already complied with, contracting authorities will likely need to work out how to indicate that their pre-market engagement has become properly build and directed in the right sections with the market.
The second illustrative regulation will need contracting authorities to perform procurements within a way that has regard to Б lean sourcing principles Б. These principles are set out inside the illustrative regulation and are also aimed at maximising efficiency through appropriate planning and effective engagement with suppliers and stakeholders.
We can be ready to see further illustrative regulations sooner or later; the Cabinet Office states in its policy statement that it truly is looking at potentially utilizing the SBEE Act regulations to require contracting authorities to:
accept electronic invoicing;
ensure bidders have free usage of information and documentation about procurement opportunities; and
run a debrief process for unsuccessful bidders even in which the procurement value is underneath the relevant threshold.
Section 40 with the SBEE Bill provides government the facility to investigate how public bodies have exercised their procurement functions excepting Academies and maintained schools, together using the procurement of health services covered with the NHS Regulations 2013, which might be all exempt through the threat of investigation.
It is clear the Public Contracts Regulations 2015 will never represent the complete story when it comes on the regulation of public procurement inside UK. We already have difficult issues around what sort of Бlight touchБ regime for health insurance and social services inside PCR 2015 will mesh together while using rules within the procurement of health services in the NHS Regulations 2013 to add towards the uncertainty here, the Labour Party has said that, whether it wins the General Election on 7 May, it is going to immediately be looking to roll back the NHS Regulations 2013 reducing the trend towards tendering from health services. The waters will basically be made more murky even as consider the way the SBEE Act regulations will go with the legislative matrix.
The Cabinet Office appears to get proposing to work with SBEE Act regulations to generate statutory the kinds of guidance which could previously are actually the subject of the Procurement Policy Note. However, within the absence of specific powers to enforce these, they search to have struggled to encourage Government as well as the wider public sector to comply Б but the new provisions will clearly carry more БcloutБ. That said, it just isn't completely clear the consequences for breach from the SBEE Act regulations will likely be, nor where the approach to challenge will lie to get a bidder who believes a contracting authority didn't comply with its duties. Of course the federal government could export throughout the remedies provisions from the Public Contracts Regulations 2015, but the require bidders to begin proceedings from the High Court, which can well lie in the evening reach on the very SME bidders that this SBEE Act regulations try and encourage.
Next time in this Countdown to Law-nch series we will likely be looking on the recent Government response on the consultation around the draft Public Contracts Regulations 2015; should we expect many changes if we at last get sight with the final version on the regulations? Perhaps
Б We are generally told that gigantic organizations are inescapably necessary; but if we look closely we are able to notice that the moment great size continues to be created there exists often a strenuous seek to attain smallness within bigness ББ in БSmall is BeautifulБ
In soon of our БCountdown to Law-nchБ series, weБre looking in the governmentБs attempts to work with the draft Public Contracts Regulations 2015 the БDraft RegulationsБ to accomplish Бsmallness within bignessБ; in order to put it one other way, the employment of policy and legislation being a vehicle to the encouragement of smaller players from the procurement markets.
WeБve been assessing the impact from the Draft Regulations on small- and medium-sized entities SMEs, along with this blog post, we focus especially on how those operating inside construction sector could be affected. That said, the modern measures, which seek to remove potential barriers to SME participation, are definitely not specific to your construction industry and definately will apply throughout the board. They will therefore carry more general interest too, both to SME bidders who might discover that they present new opportunities, and contracting authorities, who will likely need to familiarise themselves while using new measures and make sure procurement processes are compliant.
Keep calm and pre-qualify. On the complete, straightforward public works contracts are procured while using the restricted procedure, containing two stages; pre-qualification and tender. The purpose of pre-qualification is usually to see that potential bidders can handle delivering the works when it comes to their experience, capability, financial strength understanding that they possess the resources to finish the job. The pre-qualification stage should date been cited as being a barrier to entry for SMEs who usually see it too cumbersome and costly to respond while using rafts of documentation and knowledge requested or just cannot satisfy turnover requirements. The Draft Regulations come up with a new distinction between contracts that are under the relevant value threshold and people which exceed it. Where anything value is under that threshold, the Draft Regulations will prohibit the use of any separate pre-qualification stage effectively a ban within the use of pre-qualification questionnaires or use of the restricted procedure. It is intended that it will make usage of below threshold contracts easier for SMEs. For above threshold procurements there is going to be a cap on turnover requirements of twice the agreement value.
Cabinet Office Guidance and PAS 91. Our construction industry readers is going to be aware which the Cabinet Office has mandated that central government departments utilize standardised pre-qualification questionnaire PAS 91 when procuring public works contracts, but failure to make use of PAS 91 when seeking a shortlist of bidders for public works contracts familiar with carry minimum consequence within the current Regulations. However, the Draft Regulations can require contracting authorities to obtain regard to the guidance issued through the Cabinet Office about the selection of bidders. Contracting authorities should also report for the Cabinet Office any conduct which comes down to a Бreportable deviationБ on the guidance and that we assume that bidders could possibly have no hesitation in doing that too should they have concerns. This is almost likely to cement the status of PAS 91 and it is use. Outside on the construction sector, the Cabinet Office has now mandated a pair of core PQQ questions for central experts with other contracting authorities also advised to think about using it. We presume these is likewise further updated to make certain that they reflect the Draft Regulations and, undoubtedly, Cabinet Office guidance to cement their use.
Б That completion on the form was mandatory. Indeed it was the sole mandatory document within the tender submission.
Б It ended up made clear inside the tender documentation that no alteration could take place following your closing deadline.
Б Allowing the completed form being submitted could be tantamount to allowing a whole new bid.
Б The fact that Mr Nadarajah ended up БguaranteedБ to win failed to render the rejection disproportionate. There was always competition that happen to be affected by allowing the bid.
In comparison to its equality of treatment a legal court found how the appropriate comparators were those firms who had also submitted a blank form. All of those bidders had had their bids rejected. Accordingly, a legal court found that there was no inequality of treatment.
It is obvious from this case how the court is able to support a contracting authority which rejects a non-compliant bid. So how will we reconcile this decision while using decision in the ECJ within our previous blog?
Б Firstly, the Danish case was at PQQ not ITT stage.
Б Secondly, within the Danish case the missing balance sheets were part on the background but wasn't new information. By contrast the data required in Mr NadarajahБs blank form was absolutely critical towards the assessment with the bid and was information created specifically to the purpose on the bid.
Б Finally, the LSC tender documents expressly stated that no alteration or amendment to bids could be allowed after the deadline had expired. The Danish documents contained no such requirement.
As we said within our last blog, the spot that the contract documents possess a mandatory requirement the bidder should be extra careful to submit a compliant bid because contracting authority will have little if any flexibility to request clarification.
All About Rights Law Practice, R for the application of v The Lord Chancellor 2013 EWHC 3461 Admin, judgment of 15 November 2013
In it, the Danish education ministry ran a procurement for services to guidance centres for those hoping to continue to higher education. It was to get a part B services contract.
There would have been a selection stage. As part in the assessment of economic and financial standing, hopeful tenderers were motivated to submit balance sheets in addition to their application being considered for tendering. The day following the deadline for the had passed, two providers hadn't sent in their balance sheets. The Ministry emailed them and asked the crooks to forward them where they promptly did once you or two.
These two providers, together with claimant in such a case, were chosen to become invited to tender. After evaluation, the two providers won as well as the Ministry signed contracts using them. The claimant was unsuccessful and brought the claim, alleging the Ministry shouldn't have given them yet another opportunity for you in their balance sheets if they had missed the deadline. The Danish court stayed the action making a reference towards the European Court, asking whether or not the principle of equal treatment meant the Ministry was prohibited from asking for your balance sheets.
The court first noted that, although this would have been a part B services contract, because there was obviously a cross border interest, the overall principles with the EC Treaty would apply and therefore which the Ministry was under a duty to behave transparently and make certain non-discrimination and equality of treatment. The court looked in the SAG case, which concerned clarification or amplification of your tender received following your bid deadline. The judgment inside SAG case stated which it would not be possible to allow for a bidder to amend a bid as soon as the bid deadline, but that, however, clarification or correction of cloth error might be permitted provided certain guidelines were followed, the EU principles were respected, along with the clarification/correction failed to amount towards the making of any new bid.
Б Tender documents must retain the standard wording arranged at annex 1 from the PPN, explaining this plan;
Б The OJEU notice must determined the minimum standards required, together with all the information the contracting authority will need to create the assessment to whether those standards are reached. Bidders must provide certification which they have met the standards. Annex 2 on the PPN contains sample wording for that OJEU notice;
Б Departmental bodies ought to provide certificates to past suppliers who may have requested them as part from the implementation of this plan; copies has to be sent to your Cabinet Office. A template certificate is provided at Annex 3. Where poor performance has meant a public body is just not prepared to supply a certificate, reasons has to be given;
Б Contracting authorities must verify the knowledge obtained, fostering to treat all bidders equally and never discriminate, as well as act transparently. A panel needs to be appointed to adjudicate on perhaps the minimum standards are met in a particular case.
This new policy would be the governmentБs attempt to make certain there is no repeat of previous high-cost and high profile public procurements where suppliers didn't deliver, particularly inside IT sector. It remains to become seen that this policy will operate about the ground. However, one can possibly foresee certain pitfalls coming from a procurement law perspective, which contracting authorities will have to negotiate sensitively. For example:
Б The danger that past performance will creep into your evaluation stage. This is really a developing part of case law, but at the moment the status quo is represented with the Lianakis case; this firmly prohibited the assessment of past performance from the award criteria;
Б The risk that, in exercising its discretion to confirm certificates and references received see paragraph 31 from the PPN also to ultimately visit its own conclusions, a contracting authority will offend up against the basic EC Treaty principles of non-discrimination, equality of treatment and transparency, giving rise to your ground for challenge by bidders;
Б In their capacity as previous customers, will contracting authorities be ready to refuse to supply certificates and thereby to admit that past procurements have Бgone wrongБ?
Б Will the certification regime set out within the PPN only operate, used, with respect of previous public contracts, whereas suppliers might have performed poorly in other, private commercial, contracts from the past?
Readers also need to note how the proposals for any new directive on public procurement include at Article 55 on the October 2012 draft a provision allowing member states to supply that contracting authorities must, or else, may, exclude bidders who may have Б shown significant or persistent deficiencies inside the performance of the substantive requirement within prior public contract or even a prior contract having a contracting entity which triggered early termination of the prior contract, damages or another comparable sanctions Б.
On 31 October, the First Tier Tribunal gave judgment which supplies some assistance with how far confidential information received in a competitive bidding process may be withheld underneath the Freedom of Information Act FOIA.
In 2010, the London Borough of Newham began a competitive bid process beneath the structure with the Gambling Act 2005 to the operation of the casino at Westfield, close towards the Olympic Park. For the purposes on this blog it's important to observe that:
the procedure required a written agreement the Schedule 9 Agreement between any proposer and also the Council starting off the benefits offered plus the compensation proposed inside the event that, being awarded the casino licence, the 'development' was delayed and the benefits neglected to materialise; and
rolling around in its paperwork for your tender process the Council managed to get clear that All information submitted to your Council any time during Stage 2, like the form itself and associated documents, will likely be treated as
Following the bidding process an unsuccessful bidder challenged your decision as unlawful and created an application, amounting to your request under FOIA, for more information in regards to the contents in the bids and just how they were considered. Among the knowledge requested was the Schedule 9 Agreement. This was provided but ended up substantially redacted in order that, one example is, information in regards to the specific obligations that your guarantor would guarantee was deleted as was the whole of an Schedule which summarised the advantages proposed because of the successful bidder. The justification for withholding the knowledge was under section 432 of FOIA-prejudice to commercial interests.
In short, having reviewed the documents under consideration, the Tribunal agreed how the threshold for engaging section 432 ended up passed in relation to every one of the categories of knowledge. Accordingly, the primary question with the tribunal was the population interest balance between that confidentiality and appropriate disclosure.
The arguments urged for the Tribunal with the Council were that this avoidance of harm gave rise to some greater public interest than disclosure knowning that general disclosure of data would discourage bidders who will be concerned that confidential financial and commercial information could be placed inside public domain. It was noted that in such cases it was obviously a competitor who was simply seeking the info, not much of a member in the public, and this while the information can be specific to this particular particular project it could be possible to produce a body of data from it as well as other information which may disclose sensitive commercial information. For the Information Commissioner it absolutely was argued that there is such a lots of information inside public domain how the withheld information added hardly any but facilitated a much better informed public debate on what became a controversial plan.
The Tribunal considered each sounding document confidentially. Importantly it held that in relation for the Schedule 9 Agreement everyone interest was best served by full disclosure on the identity and creditworthiness of whoever stood behind the obligations. Moreover, the Tribunal considered a copy with the Schedule 9 Agreement achievable information restored would also demonstrate the expected public benefits how the guarantor has not been prepared to stand behind as well as the Councils acceptance of these limitation within the security obtained with the package of benefits offered. The Tribunal found how the public curiosity about bidders having the capacity to prevent competitors from searching for this part with the proposals was relatively slight and would not equal, not to say outweigh, the public curiosity about disclosure.
In simple terms, information which a commercial bidder may regard as commercially sensitive might nevertheless be ordered being disclosed under FOIA. The Tribunal did consider whether within the case of some with the information its disclosure could trigger an actionable breach of confidence bringing about an exemption under section 41 of FOIA. The Tribunal did discover that some on the withheld information was obtained in circumstances in how the confider might reasonably have assumed that it could well be held in confidence. It declared there must be no time frame over how the obligation of confidence lasts but it wasn't correct that such a responsibility should last forever. It found that this reasonable expectation with the confider can be that confidentiality could well be maintained to get a reasonable period of time as soon as the date once the licence was awarded.
This is significant for other public sector tendering exercises, for both contracting authorities and bidders, because doing so demonstrates that even though information disclosed inside tender is usually considered confidential which can be quite a top hurdle to cross it is going to only be resistant to disclosure by FOIA for the limited time.
It is worthwhile reading the complete decision which is usually found here.
If not Murder around the Orient Express, then certainly Red Faces in the Department for Transport!
Procurement law is headline news today, after having a dramatic midnight announcement from the government that it really is dropping the controversial award in the West Coast Mainline franchise to FirstGroup. The announcement came only hours prior to complaints around the procurement process raised with the current operator, Virgin Trains, were due being scrutinized through the High Court.
The transport secretary, Patrick McLoughlin, admitted how the procurement process was flawed understanding that this was entirely down to civil servants within his department. Three people involved within the process are already suspended using their duties and also a review is underway. The details undoubtedly are a little hazy, though the flaws inside procurement seem to have already been around what sort of department calculated and scored the potential risks attached to each from the four bids, and, especially, the quality of security payments offered as being a guarantee by FirstGroup, inside event it ran into problems with all the operation from the contract.
Various press articles have commented that around бё40 million are going to be paid for the four bidders by using compensation for wasted costs. This is interesting, as, naturally, the normal scenario is for that contracting authority, within the contract documents, to reserve the best to abandon this process at any point assuring that bidders could have no claim for wasted bid costs.
Further details will certainly emerge and now we will update you whenever they do.
further increases within the use of electronic procurement, including accessibility to all tender and contract documentation online earlier inside the procurement process; and
improved training and guidance for all those involved in procurement.
Speakers also highlighted the desire for clarity about how a governments extensive plans for mutuals could well be impacted with the procurement regime. Watch this space!
The White Paper speakers also had some interesting circumstances to say about developments on procurement challenges. Among the views expressed:
the American Cyanamid test which continues to be adopted through the courts to improve symptoms of automatic suspension cases is natural to English courts but imposes a true barrier to claimants;
there could be insufficient weight given on the public involvement in getting procurements right compared to procuring the service;
ineffectiveness being a remedy was counter-intuitive to English courts and unlikely to become veryБwellБeffective; and
there was little prospect with the EU legislation on remedies being amended inside the near future given how recently the Remedies Directive is introduced.
The Cabinet Office has issued new guidance, effective immediately, for the transparency obligations relating to your publication of contracts and tender documentation. The guidance pertains to central government departments, agents and agencies and non-departmental public bodies along with NHS bodies and trading funds.
There really are a number of amendments on the guidance, including updates to deal with dynamic purchasing systems, and new assistance with the consultancy value statement which has to be completed pertaining to all consultancy purchases that has reached over бё20K.
The EU has also been considering the problems faced by small , medium-sized enterprises SMEs in competing for public contracts beneath the current EU procurement regime. SMEs win only 31-38% of public procurement contracts by value which can be substantially lower than their overall share inside economy 52% of combined turnover suggests they ought to. Ironically therefore measures designed to increase competition and also to free the marketplace for all potential bidders will be having the opposite effect by causing it expensive for most SMEs to sign up in tenders for public contracts.
The Committee to the Internal Market and Consumer Protection has now considered now and unanimously approved measures to clear out the administrative barriers for SMEs allowing them to participate in more effectively in competitive tenders. Those measures such as a proposal to have an EU-wide electronic procurement passport which will prove the holder complies with EU rules on public procurement without the should go through an amazing paper exercise for every new bid. MEPs also backed a proposal to divide public contracts into lots to present SMEs an improved chance of bidding.
Although we're still further from any firm proposals, not to mention the introduction of further legislation, the climate in Europe is clearly to lighten the burden for SMEs, not-for-profit and social economy operators when it comes towards the current requirements for bidding for public contracts. The Commission continues to be seeking views since January 2011 about this and is now preparing a compilation of legislative proposals which will probably be tabled later this autumn.
Further up-dates on this are going to be available via our blog sooner or later.
On 27 August, European Commission Implementing Regulation 842/2011 was passed, introducing new proformas for a number of OJEU notices for instance, prior information notices, advertisements, award notices and voluntary ex ante transparency notices. The regulation may come into force on 16 September, meaning the revolutionary proformas has to be used from that date.
The regulation is obtainable here ; the modern proformas are contained inside the annexes into it.
On Tuesday, judgment was presented down inside interesting case of Mears Limited v Leeds City Council, which concerned a procurement for that maintenance of public housing stock. The case illustrates some with the rocks which an evaluation process might founder and a helpful practical application on the recent brand of cases around disclosure of award criteria. It also provides useful assistance with how contracting authorities might best structure evaluation schemes in order to avoid potential breaches on the procurement regulations.