Guide to Procurement Law 2017
About this Guide
This is the fourth edition of a guide explaining the application of EU and national procurement law to the procurement of works, services and supplies, in Ireland. This edition has been commissioned by the Construction Industry Federation (CIF), for use by its members. Publication is timely, given the recent implementation of the new EU Directives on Public Contracts, Utilities and Concessions, into Irish law. This Guide is more comprehensive than previous editions, covering the rules applying to procurement by both public and utilities sectors, the new rules applying to concession contracts and certain sectoral procurement rules notably in the transport, security & defence sectors.
The Guide throughout, highlights the important changes to procurement law introduced by the new rules. It is set out in 9 Chapters. Chapter 1 provides a background to the new rules, as well as a general overview of the main changes introduced. Chapters 2 – 7 examine the important question of scope, and the procedural rules applicable to the different stages of the process, including advertisement, selection and award. The new Concessions Directive, its scope and the “lighter” regime it establishes is discussed in Chapter 8. The systems of formal and informal remedies available to contractors in cases where they suspect breaches of procurement law are set out in Chapter 9. Contractors need to pay particular attention to the strict conditions that apply to accessing legal remedies under Irish law.
The Guide should not be read as a legal interpretation of the new rules. In drafting, we have aimed to provide a working interpretation of the rules which accords with the wording of the individual laws, guidance issued by the European Commission and judgements of the Court of Justice and national courts. As we are in the early days of working with the new laws, we can anticipate that our understanding of some aspects of those laws will evolve with time. For this reason, it is planned to update the Guide when necessary to include new developments in legislation, official guidance and case law. Readers are therefore encouraged to refer to the online version of this Guide which will include the most up-to-date information.
Barbara Linehan,
Solicitor
Tom Parlon
Director General
Construction Industry Federation
Acknowledgements
This Guide is written by Barbara Linehan. The Author would like to acknowledge the invaluable editorial input of Martin Lang Director CIF into the drafting of this Guide, the support and assistance of Alison Irving in the completion of the Guide, the contribution of Claudio Romanini (European Commission) in explaining certain aspects of the new Directives, as well as the support of law firm Maples and Calder.
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Index
Chapter 1 – Introduction
- 1.1 Background to the new Directives
- 1.2 The new Public Contracts and Utilities Directives
- 1.3 The Concessions Directive
- 1.4 Other EU procurement laws
- 1.5 The procurement remedies directives
- 1.6 TFEU principles underlying to the procurement process
- 1.7 Obligation to comply with social, environmental & labour laws (Social Clause)
- 1.8 Irish implementation of the new Directives
- 1.9 EU procurement in a worldwide context: the WTO Agreement on Government Procurement
Chapter 2 -Scope
Chapter 3 – Setting the Ground Rules
- 3.1 Introduction
- 3.2 Ensuring a level playing field for all tenderers
- 3.2.1 The proper management of pre-tender market consultations
- 3.2.2 A tenderer’s prior involvement in the contract
- 3.2.3 Conflicts of interest
- 3.2.4 Availability of the procurement documents
- 3.2.5 Variant tenders
- 3.2.6 Division of contracts into lots
- 3.2.7 Establishing time limits
- 3.2.8 Communications with contractors during the process
- 3.2.9 Report on the procurement
- 3.2.10 Building flexibility into the process
Chapter 4 – Advertising Contract Opportunities
Chapter 5 – Procedures
- 5.1 Introduction
- 5.2 Available procedures
- 5.2.1 Open procedures
- 5.2.2 Restricted procedures
- 5.2.3 Competitive procedure with negotiation (Public Contracts)
- 5.2.4 Negotiated procedure with prior call for competition (Utilities)
- 5.2.5 Competitive dialogue (Public and Utilities Contracts)
- 5.2.6 Innovation partnerships (Public Contracts and Utilities)
- 5.2.7 Negotiated procedure without prior publication (Public Contracts & Utilities)
- 5.3 Aggregated procurement procedures
- 5.4 Procurement procedure for social and other specified services
- 5.5 The Public Passenger Transport Services (PSO) Regulation
- 5.6 Procedures applying to the award of contracts outside the scope of the rules
Chapter 6 – Selection
- 6.1 Introduction
- 6.2 European Single Procurement Document
- 6.3 Exclusion grounds
- 6.4 Selection criteria
- 6.5 Shortlisting
- 6.6 Obligation to indicate all selection requirements in advance
- 6.7 Reliance on other entities (including subcontractors)
- 6.8 Registration on official lists as proof of qualifications (Public Contracts only)
- 6.9 Qualification systems (Utilities only)
- 6.10 Supplementing qualification submission post deadline
- 6.11 Rights of candidates who are not invited to tender
Chapter 7 – Contract Award
- 7.1 Introduction
- 7.2 Award criteria
- 7.3 Tender evaluation
- 7.3.1 General requirements
- 7.3.2 Weighting contract award criteria
- 7.3.3 Mandatory requirements including thresholds and contract performance conditions
- 7.3.4 Late tenders
- 7.3.5 Abnormally low tenders
- 7.3.6 Inviting and assessing variant tenders
- 7.3.7 Open procedures
- 7.3.8 Clarifying tenders
- 7.3.9 Exception to obligation to award
- 7.4 Disclosure of award criteria and evaluation methodology
- 7.5 The pre-award letter of notice & standstill period
- 7.6 Publication of contract award notice
- 7.7 Post award changes to contracts
- 7.8 Subcontractors
- 7.9 Termination of contracts
Chapter 8 – Concessions
- 8.1 Introduction
- 8.2 Scope of the Concessions Directive
- 8.3 Financial threshold and estimating the value of a concession
- 8.4 Excluded concessions
- 8.5 Duration of concessions
- 8.6 Rules on communications
- 8.7 Procedures
- 8.8 Advertising requirements
- 8.9 Electronic availability of concession documents
- 8.10 Technical specifications
- 8.11 Selection and qualitative assessment of candidates
- 8.12 Time limits
- 8.13 Provision of information to candidates and tenderers
- 8.14 Award criteria
- 8.15 Post-award standstill
- 8.16 Performance of the concession
- 8.17 Monitoring and reporting
Chapter 9 – Remedies
- 9.1 Introduction
- 9.2 Precondition for the availability of remedies
- 9.3 Remedies available
- 9.4 Automatic suspension following challenge
- 9.5 Requirement for clarity in tender documents and the “RWIND” tenderer test
- 9.6 Standard of review applied by the courts
- 9.7 Complaints to the European Commission and other European Institutions
- 9.7.1 The nature of the complaint process
- 9.7.2 Cost of procedure
- 9.7.3 Commission’s discretion to proceed or otherwise
- 9.7.4 Eligibility
- 9.7.5 Prior informal contact with the Commission
- 9.7.6 Submission requirements
- 9.7.7 Registration and acknowledgment of complaints
- 9.7.8 Protection of the complainant’s identity and other information
- 9.7.9 Keeping the complainant informed
- 9.7.10 Time limits for investigations
- 9.7.11 Outcome of the investigation
- 9.7.12 European Ombudsman
- 9.7.13 European Parliament
- 9.8 OGP’s Tender Advisory Service (TAS)