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Procurement Law Update. London • Dublin • Belfast. Edward Quigg BEng LLB MIEI MCIArb FInstCES. Overview. New Remedies Directive Weightings and marking schemes Frameworks Correcting Errors Sustainability. New Remedies Directive . Remedies Directive 2007/66/EC

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london dublin belfast

Procurement Law Update

London • Dublin • Belfast

Edward Quigg

BEng LLB MIEI MCIArb FInstCES

overview
Overview
  • New Remedies Directive
  • Weightings and marking schemes
  • Frameworks
  • Correcting Errors
  • Sustainability
new remedies directive
New Remedies Directive
  • Remedies Directive 2007/66/EC
  • To be given effect by 20th December 2009
    • Harmonise standstill arrangements
    • Possible review procedure, which if adopted means award is frozen until outcome of review
    • Introduce ineffectiveness as a remedy for illegal direct awards (cancellation of contracts entered into either retrospectively or prospectively)
  • Think of effect on funders decisions!
weightings and marking scheme disclosure
Weightings and Marking Scheme Disclosure
  • Universale-Bau AG, Case C – 470/99
  • ATI v. ACTV Venezia et alia, Case C – 331/04
    • Community law does not preclude a jury from attaching specific weight to the subheadings of an award criterion, provided that that decision : -
      • does not alter the criteria for the award of the contract set out in the contract documents or the contract notice;
      • does not contain elements which, if they had been known at the time the tender was prepared, could have affected that preparation;
      • was not adopted on the basis of matters likely to give rise to discrimination against one of the tenderers."
  • McLaughlin & Harvey Nr 2
    • 39 items to be disclosed but possibly

not the 186

frameworks
Frameworks
  • Call Off Options
    • As set out fully in the framework, or,
    • By reopening competition between all EO’s capable of carrying out the work
      • Rotation
      • KPI
      • Lottery
      • All
correcting errors
Correcting Errors
  • In ITT and PQQ
    • Ensure right is reserved
      • Allow additional time
      • Ensure equal treatment and transparency
  • In Bids
    • Ensure right to seek correction is reserved
      • Have pre-defined procedure
      • Not fundamental issues
      • Ensure equal treatment
how to assess sustainability
How to Assess Sustainability
  • In the Specification
    • Use proportionate contractual remedies, LADs or KPI matrix which has effect on amount paid
  • At selection stage
    • Can EO show capability to meet specification?
  • But NOT at award stage
    • unless essentially linked to MEAT
new info source
New Info Source
  • For
    • links to all legislation, cases and policy documents
    • Guide to Procurement obligations
    • An interactive Procurement Forum

www.QGProcurement.com

questions
Questions?

Thank You

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