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: obligation 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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