public procurement: rules and realities
DESCRIPTION
Public Procurement: rules and realities. David Gollancz Barrister Keating Chambers [email protected] Day 2 24 October 2013 11.30 Kingfisher. Commercial wisdom. So , why are capture strategies so important? - PowerPoint PPT PresentationTRANSCRIPT
Public Procurement: rules and realities
David GollanczBarrister
Keating [email protected]
Day 2 24 October 2013 11.30Kingfisher
Commercial wisdom
So, why are capture strategies so important?The majority of industry veterans agree that customer buying decisions are 40-80% decided before proposals are submitted.
Statute
EU Treaty
Directive 2004/17/EC
Utilities Contracts Regulations 2006
Directive 2004/18/EC
Public Contracts Regulations 2006
Directive 2009/81/EC
Defence and Security Public Contracts Regulations 2011
Directive 2007/66/EC
NHS (Procurement, Patient Choice and Competition) Regulations 2013
Case law
• European level:– Court of Justice of the European Union (formerly
Court of Justice of the European Communities, “ECJ”)
– General Court (formerly Court of First Instance, “CFI”)
– European Ombudsman
Guidance
• EC “soft law”:– Explanatory notes– Interpretative communications (but judicial
approval may elevate)• UK guidance:– OGC (defunct but guidance still applies unless
overruled)– Cabinet Office ERG
Chocolate mayonnaise cake• Chocolate mayonnaise cake• Ingredients• For the cake:• 275g self raising flour • 225g caster sugar • 1½ teaspoons baking powder • 200g mayonnaise (I make my own using
sunflower oil but you can use commercial)• 4 tablespoons cocoa powder • 225ml boiling water • 1 teaspoon vanilla essence • For the icing: • 2 level teaspoons instant coffee (Starbucks) or
sub 2 tbs espresso for hot water• 2 level tablespoons cocoa powder • 2 tablespoons warm water • 75g butter • 225g icing sugar
• Instructions• Preheat the oven to 180°C (350°F) mark 4. Line an
18 cm cake tin with greaseproof paper. • Sift the flour into a large mixing bowl and stir in the
caster sugar and baking powder. Beat the mayonnaise well into the flour – it is very important to beat thoroughly into the dry ingredients.
• Dissolve the cocoa in the boiling water and stir this gently until it’s smooth. Add to the flour mixture with the vanilla essence and give it a quick stir. Stir everything thoroughly until all the ingredients are blended but this time don’t beat the mixture because that will spoil it. Just keep stirring it gently until all the lumps are gone.
• Pour the cake mixture into the tin. Bake for about an hour or until the centre feels springy and a skewer comes out clean. Leave the cake in the tin to cool before turning out onto a wire rack.
• For the topping, dissolve 2 teaspoons of coffee and 2 tablespoons of cocoa in 2 tablespoons of hot water. Add the soft butter and the icing sugar.
• Beat the mixture thoroughly ensuring there are no lumps and spread it over the cake.
TFEU Art. 18
Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.
Equal treatment
• “Lies at the very heart of the Directive”• The contracting authority must not treat
economic operators favourably or unfavourably by comparison with each other except on relevant, objective and proportionate grounds and by a transparent process
The Principles
• The Directives:– Equal treatment– Non-discrimination– Transparency
• The Treaty and case law:– Proportionality– Objectivity– Fairness– Rationality
Transparency
• Contracting authority has broad (but not unfettered) discretion as to its criteria and procedure - but
• Having chosen its criteria and procedure, contracting authority has no discretion to waive, alter or depart from them.
• Criteria and procedure must be made available so that interested parties (including the court) can review them and assure themselves that they have been properly and impartially applied.
Regulation 4(3)
(3) A contracting authority shall (in accordance with Article 2 of the Public Sector Directive)—(a) treat economic operators equally and in a non-discriminatory way; and(b) act in a transparent way.
Perfect garlic mash• Estima* potatoes peeled and cut in quite large chunks• Sprinkle with EV olive oil, salt, and fine-cut garlic• Steam till tender but not too soft and definitely not collapsing• Put in mouli with fine screen, set over warm ceramic bowl (fireproof if
you’re going to keep hot in oven), add generous dollop of best butter and some whole milk or a little cream
• Pass through mouli• Voila! Parfait
Principal stages
• Advertisement• Selection (“PQQ” or “PEQ”)– Rejection (Mandatory and discretionary Reg. 23)– Qualification (Minimum standards, Reg. 24 – 25)– Selection (Ranking – individual procedural regs,
not in Open procedure)
Principal stages
• Award– Lowest price– Most economically advantageous tender
(Price/quality)• Notification– Outcome– Reasons
Overriding principle
• The obligations of equal treatment, non-discrimination and transparency apply with full force throughout the process, and throughout any review of the process
Time limits for challenge
• 30 days from date on which claimant knew or ought to have known of grounds
• = knew or ought to have known facts which clearly indicate, although they need not necessarily conclusively prove, that there has been a breach
• Rigorously enforced; provision for extension to 3 months “for a good reason” but no successful applications for extension so far
Public Procurement: rules and realities
David GollanczBarrister
Keating [email protected]
Day 2 24 October 2013 11.30Kingfisher