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NATIONAL PROCUREMENT SERVICE SEMINAR DUBLIN CASTLE 6TH MAY 2010 EFFECTIVE PUBLIC PROCUREMENT : KEY CHALLENGES FOR 2010

General Principles of EU Law . Always relevant (even if other specific rules complied with) (See 2006 Communication). Most important in this context are: Transparency; andNon-Discrimination.Enshrined in Directive and Regulations.. Fundamental Principles. Non-Discrimination (e.g. nationality)Equal treatment of tendersTransparency (adhere to requirements as stated) Proportionality (relate requirements to needs of contract and as stated)Comity (e.g. according mutual recognition and eq197

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NATIONAL PROCUREMENT SERVICE SEMINAR DUBLIN CASTLE 6TH MAY 2010 EFFECTIVE PUBLIC PROCUREMENT : KEY CHALLENGES FOR 2010

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    1. NATIONAL PROCUREMENT SERVICE SEMINAR DUBLIN CASTLE 6TH MAY 2010 “EFFECTIVE PUBLIC PROCUREMENT : KEY CHALLENGES FOR 2010” OPENNESS AND TRANSPARENCY IN PUBLIC PROCUREMENT SELECTION VERSUS AWARD CRITERIA PATRICK MCGOVERN, PARTNER ARTHUR COX EARLSFORT CENTRE, EARLSFORT TERRACE, DUBLIN 2 Telephone + 353 (0) 1 618 0000/618 0545 Fax + 353 (0) 1 618 0768 patrick.mcgovern@arthurcox.com www.arthurcox.com Belfast London New York

    3. Fundamental Principles Non-Discrimination (e.g. nationality) Equal treatment of tenders Transparency (adhere to requirements as stated) Proportionality (relate requirements to needs of contract and as stated) Comity (e.g. according mutual recognition and equal validity to qualifications and standards from other Member States)

    4. National Legislation European Communities (Award of Public Authorities’ Contracts) Regulations, 2006 (SI No 329 of 2006) Regulation 17: Equal treatment, Transparency and Non-Discrimination Regulation 66 : MEAT or Lowest Price Award Criteria and Weightings Note also: EC (Public Authorities’ Contracts) (Review Procedures) Regulations 2010 (25 March 2010) (transposing New Remedies Directive 2007/66/EC required to be in force in Irish national law from 20 December 2009) Similar for Utilities: EC (Award of Contracts by Utility Undertakings) (Review Procedures) Regulations 2010 (25 March 2010)

    5. Public Sector Regulations 2006 MEAT Regulation 66 (Article 53 Public Sector Directive) “(1) A contracting authority shall, in awarding a public contract on the basis of the tender that is most economically advantageous to it, adopt criteria linked to the subject matter of the contract. (2) Except as provided by paragraph (1), a contracting authority shall award a public contract on the basis of the lowest price. (3) For the purpose of paragraph (1), the criteria may include (but are not limited to) – - quality, - price, - technical merit, - aesthetic and functional characteristics, - environmental characteristics, - running costs, - cost effectiveness, - after-sales service and technical assistance, and - delivery date and delivery period or period of completion.

    6. Public Sector Regulations 2006 MEAT Regulation 66 (Article 53 Public Sector Directive) (cont’d…) (4) The contracting authority shall specify in the relevant contract notice or contract documents, or in the case of a competitive dialogue, in the relevant descriptive document, the relative weighting that it gives to each of the criteria chosen to determine the most economically advantageous tender. That weighting can be expressed by providing for a range within an appropriate maximum spread. (5) If weighting is not possible for reasons that the contracting authority can demonstrate, the authority shall specify in the relevant contract notice or contract documents or, in the case of a competitive dialogue, in the relevant descriptive document, the criteria in descending order of importance. ….” Corresponds to Regulation 57 of EC (Award of Contracts by Utility Undertakings) Regulations 2007 (SI No 50 of 2007) (Article 55 Utilities Directive 2004/17/EC)

    7. Disclosure Obligations – EC Law Some Key Cases Case C-470/99 Universale Bau v Entsorgungsbetriebe Simmering [2002] ECR I-11617 (applies to both PQQ Criteria as well as Award Criteria) (No disclosure at all even though determined beforehand and lodged with notary) Case C-331/04 ATI-EAC – ACTV Venezia et al [2005] ECR I-10109 (one criterion subdivided unevenly after tender submission) Case C-532/06 Emm G Lianakis v Dimos Alexandroupolis [2008] ECR I-0251 (Tenderers have to be aware of all elements to be taken into account and relative importance; Must disclose weighting of criteria and nature of sub-criteria; and Authority may not apply weightings or sub-criteria which have not been brought to attention of bidders - both weightings and subcriteria only devised during evaluation)

    8. Disclosure Obligations – EC Law

    9. General Qualification Criteria If pass, then fit to participate in Award stage Award Criteria Competitive award on basis of Price Only or MEAT tests, as determined in advance Must choose (Lowest) Price only, or MEAT Any other “criteria” in MEAT possibly ejusdem generis (of the same kind) Incline to view that Experience/Technical Ability not expressly allowed and possibly not “ejusem generis”

    10. Lianakis and Others v. Dimos Alexandroupolis ECJ Case C-532/06, January 2008 Two Dimensions Disclosure of Award Criteria Distinction between Qualification and Award Criteria Here authority held to have failed to distinguish (adequately) between: Qualification Criteria; and Award Criteria. Here main Award Criteria related to Experience and Technical and Professional Ability Criteria held unlawful because determination of Tenderer’s suitability; and award of contract under distinct procedures governed by different rules

    11. Lianakis (Cont’d) Qualification Economic/financial standing Technical/professional ability Remember award of contracts to be by Lowest Price Most Economically Advantageous Tender Remember fundamental Principles Equality (effectively leads to requirement of due process) Transparency (effectively leads to requirement of verifiable trail) (Telaustria) Lianakis followed in Case C-199/07 Commission v Hellenic Republic, 12 November 2009

    12. Scott and Others v. Belfast Education and Library Board NICh D, Weatherup J, 15 June 2007) (“Scott”) [2007] NI Ch4 Plaintiffs sought injunction to restrain BELB from proceeding with tendering process for award of contracts for building works and for maintenance works Court held that: implied contract between awarding authority and a tenderer and can arise from submission of tender and presumed intention of parties from tenderering process for public contract (here works) even if below financial threshold in Regulations

    13. Scott (2) principle of Transparency means award criteria must allow reasonably informed bidders to interpret criteria in same way authority must interpret and apply the criteria in same way throughout process authority had duty to consider tenders fairly and in good faith as to specified procedures in a contract, assessment of tenders according to the specified criteria, and assessment in a uniform manner and as intended by the tender documents authority had to avoid disreputable conduct authority had to ensure “absence of any material ambiguity in the tender documents that would significantly affect the tender” Preliminary questions answered accordingly

    14. McLaughlin & Harvey Ltd v. Department of Finance & Personnel (QBD, NI, Deeny J) Interlocutory judgment (No. 1) [2008] NIQB 25, 22 February 2008 Judgment after trial (No. 2 ) [2008] NIQB 91, 11 September 2008 Remedies (No. 3 ) [2008] NIQB 122, 30 October 2008 NB: McLaughlin & Harvey Ltd (No. 2) and Henry Bros (No. 2) have been appealed to NI Court of Appeal and judgments pending (May 2010)

    15. McLaughlin & Harvey (No. 2) leading modern judgment in Common Law world To be read also in light of J&A Developments Ltd. v. Edina Manufacturing Ltd [2006] NIQB 85 McLaughlin & Harvey Ltd

    16. McLaughlin & Harvey Ltd v. Department of Finance and Personnel (No 2) (NI QBD, Deeny J, 11 September 2008) (“McLaughlin & Harvey Ltd No. 2”) Here Plaintiff failed to be selected onto a Framework Agreement (top 5 selected and plaintiff placed 6th) for construction work in urban regeneration, further education, arts and sports developments Would not extend to schools, health, roads, thus plaintiff still eligible for other work in coming 4 years Plaintiff claimed that only learned in debrief meeting of existence of a further methodology but defendant Department claimed nothing further or new in methodology At interlocutory stage ([2008] NIQB 25, February 2008) Court declined to grant injunction but was arranging early trial No. 2 judgment followed full trial

    17. Court had careful regard to purpose and Recitals (“Whereas”) in Public Sector Directive Recital (1) Directive based on [Court of Justice] case law, in particular case law on award criteria …” McLaughlin & Harvey Ltd (No 2)

    18. Recitals (46) and (47) Recital (46) – Principles of Transparency, non-discrimination and equal treatment Recital (46) “… it is appropriate to lay down an obligation – established by Case Law – to ensure the necessary transparency to enable all tenderers to be reasonable informed of the criteria and arrangements which will be applied to identify the most economically advantageous tender. …” (emphasis added) McLaughlin & Harvey Ltd (No 2)

    19. What are “Criteria”? Court considered that Directive in using the term “criteria” did so both for the overriding distinction between “lowest price” and “most economically advantageous tender” and a series of economic and qualitative criteria which may be applicable to particular contracts (effectively aspects of MEAT) The Court referred to Article 53 as to MEAT McLaughlin & Harvey Ltd (No 2)

    20. The Court referred to obligation on Contracting Authority to specify “the relative weighting which it gives to each of the criteria chosen to determine the most economically advantageous tender” Weightings can be expressed by a range within an appropriate spread or even, where it is not possible to provide weightings, to place the criteria in “descending order of importance” A Contracting Authority shall use criteria linked to the subject matter of the contract to determine that an offer is the most economically advantageous including as to quality, price, technical merit, aesthetic and functional characteristics, environmental characteristics, running costs, cost effectiveness, after sale service, technical assistance, delivery date and delivery period of completion McLaughlin & Harvey Ltd (No 2)

    21. Court considered leading EC Cases including: Case C470/99 Universale-Bau AG [2002] ECRI-11617 (authority bound to bring to prior knowledge of candidates the weighting of the selection criteria which it intends to use) Case C-331/04 ATI v. ACTV Venezia et al [2005] ECRI-10109 (parties given four award criteria with maximum of 60% for first criterion and maxima of small order for other criteria – subsequently after submission of tenders but before opening of envelopes authority weighted remaining 25 points under criterion 3 into 5 subheadings. Disappointed contractor challenged successfully (EC law precluded authority from attaching specific weight to subheadings of an award criterion defined in advance by dividing afterwards among those subheadings points to be awarded for that criterion) Court considered what were “criteria” and referred to French and Italian texts of ATI case including use of “éléments” and “sous-élements” (French) and “elementi” and “sub-elementi” (Italian) – Court concluded that “features” could not refer merely to award criteria and nothing else McLaughlin & Harvey Ltd (No 2)

    22. Court concluded that elements and subheadings intended to cover both criteria (including subsidiary criteria) and the weight to be given to them Court held that on authority of ATI that it must determine whether the decision of a contracting authority contained elements which if they had been known at the time the tenders were prepared “could [not would] have effected that preparation” In McLaughlin & Harvey (No. 2) Court also considered Lianakis and noted distinction between “award criteria” and “qualitative selection criteria” McLaughlin & Harvey Ltd (No 2)

    23. In ATI the subcriteria had been disclosed in advance and it was only the weightings that were settled on after the tenders had been submitted but this still held illegal In McLaughlin & Harvey (No. 2) the Court also considered national authority R (Law Society) v Legal Services Commission [2008] 2 All ER 148, Court of Appeal, England McLaughlin & Harvey Ltd (No 2)

    24. In Law Society case Lord Phillips of Worth Matravers CJ set out the importance and reasons for the principle of transparency and its application in a Public Procurement Law context: it enabled the contracting authority to satisfy itself that the principles of equal treatment and non-discrimination on ground of nationality had been complied with (Telaustria, SIAC v. Mayo County Council and Commission v. France see 340/02 [2004] ECR 1-9845) it facilitates competition (Telaustria, Parking Brixen, Impresa Portuale di Cagliari Srl v Tirrenia di Navagazione SpA (Case C1-174/03, unreported, 21 April 2008) it enables impartiality of procurement procedures to be reviewed (Telaustria, Impresa Portuale di Cagliari) it precludes any risk of favouritism or arbitrariness on part of contracting authority (EC Commission v. CAS Succhi di Frutta SpA (Case C-496/99 P [2004] ECRI-3801 ) it promotes a level playing field by enabling all tenderers to know in advance on what criteria their tenders will be judged and those criteria are assessed objectively (SIAC v. Mayo County Council [2001] ECR I-7725) McLaughlin & Harvey Ltd (No 2)

    25. In Law Society case the Court of Appeal disallowed a condition in standard form contract of LSC permitting any change whatsoever in procedures In McLaughlin & Harvey the Court also considered Lion Apparel Systems Ltd v. Firebuy Ltd [2007] EWHC 2179 (Morgan J in the English Chancery Division) that interpreted the case as not ousting maxim de minimis non curat lex and invoked the decision of Privy Council in Pratt Contractors Ltd v. Transit New Zealand [2003] UK PC 83 Court in McLaughlin & Harvey (No 2) also considered judgment of Silber J in the English Queen’s Bench Division in Letting International Ltd v. London Borough of Newham [2008] EWHC 1583. (In Letting the authority did publish criteria with weightings including 50% for compliance with specification. But went on after tenders were submitted to divide that 50% unevenly between 5 subheadings. Held: illegal). McLaughlin & Harvey Ltd (No 2)

    26. In McLaughlin & Harvey the Court found that: there were 39 criteria but some 186 subcriteria and also that all were “linked to” the subject matter of the Framework Agreement; the subweightings here were not predictable although they were not irrational; the “elements” ought to have been disclosed to the bidders; the “elements” in the Quality Submission – Evaluation Matrix were indeed subcriteria; a “rigid stratification” was not borne out by EC Case Law. that the ATI decision required that bidders know all the elements or sub-elements which could affect preparation of a bid and that all 39 elements and subcriteria for the Framework Agreement ought to be disclosed and they had not been in the present case as to the 186 subcriteria – these were possibly performance criteria or were possibly sub-sub criteria McLaughlin & Harvey Ltd (No 2)

    27. The Court in McLaughlin and Harvey (No. 2) noted that Lianakis had drawn a distinction between award criteria and performance criteria which could not be overlooked The Court in McLaughlin & Harvey (No. 2) also found no discrimination intended between bidders or in favour of any bidder suggested that it was wise to prepare checklists before bids were received held undisclosed subcriteria in this case were both reasonable and consistent with the principal award criteria but nevertheless ought to have been disclosed rejected any claim of manifest error but held that further decisions on whole life costs and build quality were within the margin of discretion available to the awarding authority McLaughlin & Harvey Ltd (No 2)

    28. Conclusions There must be disclosure of all relevant information for reasonably informed bidder to know what required of it Categorisations of Award Criteria, Sub Criteria and Methodologies subordinated to above Real risk of indistinguishable homogeneity Lightways (Contractors) Ltd v North Ayrshire Council [2008] CS0H 91 (OH: Lord Bracadale)

    29. Telaustria Remember “Fundamental Principles”, above Case C 324/98 Telaustria [2000] ECR I – 10745 “Although certain contracts outside formalities, … contracting authorities … nevertheless bound to comply with fundamental rules of [EC] Treaty” “… a degree of advertising sufficient to enable the services market to be opened up to communication and the impartiality of the procedures to be reviewed.” Commission Interpretative Communication published OJ 01.08.06 “A very modest economic interest at stake …” “… no interest to economic operators located in other Member States” “Might potentially be of interest to economic operators located in other Member States … evaluation of individual circumstances of the case”

    30. Telaustria Subject matter of Contract, estimated value, specifics of sector concerned (size and structure of market, commercial practices etc.), geographic location/place of performance If contract “is relevant to the Internal Market” contracting entity “has to award it in conformity with the basic standards derived from Community Law” Consider usefulness of device of non-mandatory notice(s) in OJEU

    31. Confidentiality: obligation to observe Case C-450/06 Varec SA v Belgian State [2008] ECRI-581 (considered in Amaryllis (No. 2), above) Question of waiver Striking balance in relation to waiver Confidentiality

    32. Other Information Entitlements Directives and Regulations themselves Freedom of Information Acts Veolia Nottinghamshire Ltd v Audit Commission for Local Authorities [2009] EWHC 2382 (Admin) Access to Information on the Environment – Directive Specific statutory measures

    33. Challenge Alcatel letter (especially in light of much fuller information obligations under Directive 2007/66/EC and 2009 Public Contracts (Amendment) Regulations) Information to (prospectively) (disappointed) underbidder Litigation

    34. Litigation Discovery Order – Normal incident of Litigation Can be at interlocutory stage even in Judicial Review Tweed v. Parades Commission for Northern Ireland [2007] 2 All ER 273, HL Sheridan Millennium Ltd v. Department for Social Development and Laganside Corporation [2007] NIQB 92, 13 November 2007 (QBD, NI – Gillen J)

    35. OTHER LEADING IRISH CASES

    36. Partenaire Ltd v Dept of Finance and Personnel [2007] NIQB 100 (QBD NI, Coghlin J, 23 November 2007) Applicant was SPV bidder for large NICS office refurbishment/rationalisation/construction programme including: Transfer to private sector of c. 77 buildings Capital transfer payment (estimated c. £200 million) by bidder NICS would pay unitary service charge (USC) in variable amounts according to availability and standard of accommodation provided Held: Debriefing in May 2007 to applicant on its elimination from BAFO revealed apparent errors on part of awarding authority consultants in understanding of applicant’s tender Noted that errors allegedly went to Decant hubs Evaluation of Financial Proposal Not providing comprehensive table setting out timeline Contrary to Department’s assertion, regional decant was fully detailed and explained in tender Applied American Cyanamid

    37. Partenaire (2) Noted possible effect of Alcatel in heightening availability of injunctive relief Applied balance of convenience test including considering that if applicant could be introduced as an additional candidate at BAFO it would be an “also ran” and that might be strain on Department’s objectivity in assessing Distinguished between contract award and later management of the Public Procurement process (in context of administrative and local government reform) Undertaking in damages accepted from principal shareholder in SPV

    38. Henry Bros (Magherafelt) Ltd & Others v. Department of Education for Northern Ireland [2007] NIQB 116 (QBD NI, Coghlin J, 1 December 2007) (“Henry Bros”) Interlocutory judgment (No. 1) [2007] NIQB 116, 21 December 2007, Coghlin J Judgment after full trial (No. 2) [2008] NIQB 105, 3 October 2008, Coghlin J Remedies (No. 3) [2008] NIQB 153, 19 December 2008, Coghlin LJ No. 2 Judgment pending in NI Court of Appeal (January 2010)

    39. Henry Bros (2) Seeking interlocutory injunction restraining procurement process for concluding NI Schools Modernisation Framework Agreement Provision of major construction works and appointment of teams of designers and contractors to undertake projects as the need arose 4 Plaintiffs not shortlisted Plaintiffs objected to Department’s criteria for choosing between tenderers Criteria – series of questions weighted 80% (qualitative) and 20% (commercial)

    40. Qualitative related to factors such as experience, capacity, resources and technical expertise whereas commercial required bidders to specify fee percentages within hypothetical ranges of contract value Concern re: application of MEAT when objective criteria were fee percentages and which might not relate precisely to actual cost of work Court declined to grant interlocutory injunction (balance of convenience test) but stated very serious questions raised including as to national and EC Law Henry Bros (3)

    41. (No. 2) (QBD, Coghlin J, 3 October 2008) [2008] NIQB 105 Held: on substantive question of criterion, breach of EC Public Procurement Law (No. 3) (QBD, Coghlin LJ, 19 December 2008) [2008] NIQB 153 Held: in framework agreements, limitation of remedy by excluding set aside applied only to specific contracts and not framework agreements. Followed McLaughlin and Harvey No. 3). Set aside framework agreement in Henry Bros (No. 3) Henry Bros (4)

    42. Sheridan Millennium Ltd v Dept for Social Development and Laganside Corporation (QBD NI, Gillen J, April 2007, 13 November 2007 and 28 January 2008) Interlocutory judgment (No. 1) [2007] NIQB 27, 18 April 2007, Gillen J Discovery (No. 2) [2007] NIQB 92, 13 November 2007, Gillen J Judgment after Full Trial (No. 3) [2008] NIQB 8, 28 January 2008, Gillen J

    43. Sheridan (2) Queen’s Quay Urban Redevelopment, Belfast Decision by DSD to terminate SM appointment as preferred developer for Queen’s Quay development and by Laganside not to recommend SM as preferred developer 18 April 2007 [2007] NIQB 27 : Court granted leave to apply for JR and extended time Allegations of unlawful notice Arguable case Public Law element

    44. Court held Had not ceased to be public law once due diligence entered into Arguable that if process flawed by bad faith JR should not be excluded Allegedly vitiating factors were matters of Public Law affecting public interest Emphasis that preliminary stage only 13 November 2007 [2007] NIQB 92 : Court held Authority of House of Lords decision in Tweed v Parades Commission 2007 that discovery can be available on JR Awarding authority had relied on Victoria Square as benchmark for Queen’s Quay due diligence and hence discovery of Victoria Square documents (with redactions available at least as to conclusions and summaries) 28 January 2008 [2008] NIQB 8 : Court declined to grant Judicial Review on basis that applicant had not proved case, in particular as to awarding authority reservations on financial matters Sheridan (3)

    45. J&A Developments Ltd v Edina Manufacturing Ltd [2006] NIQB 85, (QBD, NI, Sir Liam McCollum, 11 December 2006) Plaintiff and 6 others invited to tender for construction of workshop/offices Incorporated a Code of Practice Held: tender documents and Code required Contracting Authority either to accept no tender at all or lowest priced as submitted (that of J&A) Held: inviting three tenderers to reduce price was breach of Code and impermissible in law

    46. Natural World Products Ltd v ARC21 [2007] NIQB 19 (QBD, NI, Deeny J, 15 March 2007) Tender for putting in place waste compaction and other facilities Allegation by applicant that tender not assessed correctly: Allowance for alternative facility available in support if new Belfast facility not sufficient

    47. NWP v ARC 21 (2) Held: Contract to assess tender Such contract incorporated EC Law principles of Equality and Fairness Awarding Authority must act fairly and in good faith, but this did not necessarily require granting a hearing On facts, inadequate recognition given to applicant’s tender as to provision for alternative facilities Supplementing information could be received on clarification On facts, hastily filed replies containing some non-essential errors did not invalidate replies As matter of fairness (extension of audi alteram partem) would give credit to matters advanced in favour of applicant’s tender as well as against This was basis (either on fairness, contract or under Regulations) for finding that defendant acted unlawfully and that decision be set aside No need to reassess all bids but rather only that inadequately assessed (Faults were peculiar to that assessment)

    48. Part B Services Decision by awarding authority to abort procurement Court determined that this within reasonable discretion of awarding authority

    49. 2008 tender for security services (Part B services contract) Federal (incumbent) was notified on 22 December 2008 that it was unsuccessful Federal requested reasons Contract concluded on 22 Dec 08 (ie. no standstill period applied) Police argued that damages were only remedy (Reg 47(9)) Federal argued that the Alcatel period should apply HELD – Interim injunction granted restraining Police from proceeding

    50. Fundamental principles of EU law “may in particular situations require the use of a standstill period in contract procedures normally excluded from that obligation.” Coname, Parking Brixen, Telaustria establish that award of public contracts remains subject to the principles of transparency, equivalence, effectiveness and equal treatment even when outside the scope of the Directives Alcatel decision requires States to ensure that IN ALL CASES a decision to award a contract is subject to review at the request of unsuccessful tenderers and to being set aside in appropriate cases By not offering a standstill period the authority denied the unsuccessful tenderer an opportunity to apply to have the decision set aside

    51. Exceptional circumstances in this case that warranted use of the Alcatel period included: Police aware of trans-border interest in the contract Contract was high value (£60m) There were controversial aspects of the tender procedure Federal had submitted the lowest price tender Police were aware that Federal was disputing the procedure by which the contract was awarded

    52. Significant Case … In an individual case, standstill periods now may apply even if there is no legislative requirement for same – ‘an exception to the rule’ Despite Regulation 47(9), concluded contracts may not be immune from interim relief/set aside if awarded in breach of EC law Regulation 47(9) applied to contracts which complied with principles of EC law – (ie not the contract in question) Recital 13 of new Remedies Directive states “A contract resulting from an illegal direct award should in principle be considered ineffective” – Court had regard to this in determining that the relief could be given (Appealed but appeal not pursued.)

    53. McConnell Archive Storage Ltd v. Belfast City Council [2008] NICh3 (Ch D, NI, Deeny J, 25 January 2008) Tender for provision of services to provide outsourced file storage and retrieval services Following evaluation candidate informed that it was successful “subject to the 10 working day standstill period”and to form of contract being drawn up Candidate B challenged and made submissions following disclosure to it of certain computations

    54. Council concluded that it had evaluated challenger’s bid erroneously and wrote to candidate A (plaintiff/applicant) informing it that Council had “therefore decided to rescore the relevant tender on the correct basis which involves no alteration or amendment to the figures which had already been provided in that bid” Council then informed plaintiff and others that challenger had been found to have submitted MEAT and further 10 day standstill period was imposed

    55. Court (Deeny J) held there was a contract to consider all tenders in accordance with tender documentation (Natural World Products Ltd. v Arc21 [2007] and Blackpool and Fylde Aero Club v Blackpool DC [1990] Court held that awarding authority in issuing Alcatel notice had not entered into a binding legal contract with recipient of notice conveying that it was successful subject to standstill period and contract Council had right to reopen the contract assessment and award the contract afresh when satisfied this was correct thing to do where initial award of contract (subject to Alcatel notice) was in fact grounded on illegality, bad faith or material unfairness

    56. Application of Watters and Others (Sport NI) [2009] NIQB 71 (QBD, NI, Morgan LCJ, 14 August 2009) Sport NI administered programme with awards of up to £87 million in connection with London 2012 Olympic and Paralympic Games Required relevant details for Stage 2 to be filed “before 4pm precisely on Friday 28 November 2008” Applicant on behalf of Belfast City Council was 2/3 minutes late after deadline

    57. Application of Watters and Others (Sport NI) (2) Held (Morgan LCJ) Applicant had sufficient standing (locus standi) including on grounds of public interest citing 4 main elements as set out in Re D’s Application [2003] NI295 Potency of public interest content of case, The greater the amount of public importance involved the more ready the Court to hold in favour of necessary standing, Focus more on the existence of default or abuse on part of awarding authority than involvement of a personal right or interest on part of applicant, and Absence of another responsible challenger would frequently be a significant factor,

    58. It was not “unreasonable” to exclude applicant citing Leadbitter v. Devon County Council [2009] (and supporting statement by Prof. Arrowsmith) that, even if there is a discretion to accept late submission, there is no requirement to do so if, as here, this resulted from default on the part of the tenderer (as opposed to the awarding authority) Giving of weight to the deadline did not constitute a fettering of Sport NI’s discretion but was an exercise of that discretion Transparency and equality of treatment meant that those who had submitted in advance of deadline should be treated differently from those who had not Full statement of reasons had been given in minutes of Sport NI and made available to applicants Case in fact decided on a slightly different point mainly the Court holding that Sport NI ought to have considered whether instead of making no award to the applicant it might have reduced award and accordingly omitted matters to Sport NI Application of Watters and Others (Sport NI) (3)

    59. Deane Public Works Ltd v Northern Ireland Water Ltd [2009] NICh 8 (ChD, NI, Morgan LCJ, 28 August 2009) Deane sought to be included on restricted list on foot of PQQ Matter arose under Utilities Directive and had value of £2.5 million (below EC threshold) All candidates required to submit details of 3 relevant projects which “must have been completed within the last 5 years or currently be substantially complete.” Key Dates 20 July 2007 : ITT published 27 August 2007 : confirmed by telephone that Projects which had been completed outside the 5 year qualifying period would be awarded zero points 29 August 2007 : plaintiff submitted its completed PQQ

    60. Deane Public Works Ltd v Northern Ireland Water Ltd (2)

    61. Deane Public Works Ltd v Northern Ireland Water Ltd (3)

    62. Conclusions from Cases Courts assiduous in protecting rights of stakeholders EC Public Procurement principles of Equality, Fairness, Transparency and Proportionality carried into procedures for assessing Tender documentation and applying EC and national law Difficulties and, sometimes, conflicting risks for awarding authorities

    63. PATRICK MCGOVERN, PARTNER ARTHUR COX Tel: + 353 (0) 1 618 0545 Fax: + 353 (0) 1 618 0768 patrick.mcgovern@arthurcox.com www.arthurcox.com Belfast Dublin London New York Capital House Earlsfort Centre 12 Gough Square 300 Park Avenue 3 Upper Queen Street Earlsfort Terrace London EC4A 3DW 17th Floor Belfast BT1 6PU Dublin 2 New York, NY 10022 Tel +4428 9023 0007 + 353 (0) 1 618 0000 + 44 20 7832 0200 + 1 212 705 4288 Fax + 4428 9023 3464 + 353 (0) 1 618 0618 + 44 20 7832 0201 + 1 212 572 6499

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