Procurement Update - November 2011

This update contains brief details of recent news, legislation, cases and other developments relevant to those involved in procurement work that have been issued in the pastfour months.


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Emily Heard


This update contains brief details of recent news, legislation, cases and other developments relevant to those involved in procurement work.

If you have been forwarded this update by a colleague and would like to receive it direct please email Claire Booth.

All links are correct at the date of publication.

In this update:

Policy and Guidance

Cabinet Office: Procurement Policy Note PPN 05/11 - Modernising the public procurement rules
This note outlines the Cabinet Office Procurement Policy Team's strategy on influencing the European Commission's proposals for revised and updated Public Procurement Directives.  The Cabinet Office Minister, Francis Maude, is inviting comments on the EC's Green Paper on simplifying and improving the public procurement rules. All feedback will be used to inform the Cabinet Office's response. (11 August 2011)

Cabinet Office: Procurement Policy Note 06/11 - Amendments to the Procurement Regulations, including "Uniplex"
This note outlines a number of amendments to the Public Procurement Regulations that came into effect from October 2011 (see below).  It covers: changes to the time limits for Court challenges to procurement decisions, following the European Court of Justice's "Uniplex" ruling, and some related procedural changes; modifications to the criteria for the 'automatic suspension'; amendments to the definitions of certain offences and other causes for which economic operators may, or must, be rejected; it reflects Machinery of Government changes affecting the Office of Government Commerce (OGC); and it makes a few miscellaneous minor updates, improvements and corrections. (2 September 2011)

Cabinet Office: Procurement Policy Note 07/11 – Updated guidance on transparency
This note provides an update to the transparency guidance and sets out the implications for the use of Contracts Finder. (3 October 2011)

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Audit Commission: Contract areas announced for audit practice outsourcin
Announces that the Commission has formally launched the process for outsourcing the work of its Audit Practice. It has issued the Contract Notices for the procurement of audit services for principal bodies and limited assurance audits. For the principal bodies' procurement, bids will be invited for ten contract lots in four geographical regions. Under the timetable for the procurement process, potential providers must submit their completed PQQs by 7 October 2011.
The Audit Commission has also published its Procurement strategy setting out the objectives of the two procurement exercises and how they will be carried out, and the formal Protocol, to which all Commission staff have been required to sign up, to ensure propriety in the preparation of any employee-led bids. (6 September 2011)

HM Treasury: Making savings in operational PFI contracts
This guidance is the final version of the draft guidance which was published in January 2011 that aimed to assist public sector PFI contract managers to identify and implement savings measures that would reduce costs while maintaining frontline services. Since the draft guidance was issued, four pilot cost savings reviews of operational PFI projects have been carried out. This finalised guidance draws together the findings of those pilots and provides an updated plan to deliver £1.5bn savings across the 495 operational PFI projects in England. Public sector authorities should also factor these recommendations in to future project procurements, and as far as possible to projects in the procurement pipeline. It states that three main areas of savings in operational PFI contracts are: 

  • effective management of contracts, e.g. through reducing wasteful energy consumption and through the public sector sharing in savings on insurance; 
  • making efficient use of space, e.g. from subletting or mothballing surplus building space; and 
  • reviewing soft service requirements, so that the public sector does not buy more than it needs when specifying facilities management such as window cleaning and frequency of decoration.

HMT states that this announcement is one of a number of ambitious steps to secure better value for money in PFI contracts and it will continue to look for innovative ways to improve the delivery of private finance in the public sector. (19 July 2011)

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Treasury Select Committee: Private Finance Initiative
This report aims to aid the Treasury in the work they are doing to reform PFI (report due out Autumn 2011). The Committee concludes that PFI funding for new infrastructure, such as schools and hospitals, does not provide taxpayers with good value for money and stricter criteria should be introduced to govern its use. Higher borrowing costs since the credit crisis mean that PFI is now an ‘extremely inefficient’ method of financing projects; however, poor investment decisions may continue to be encouraged across the public sector because PFI allows Government departments and public bodies to make big capital investments without committing large sums up front. The Committee has not seen any convincing evidence that savings and efficiencies during the lifetime of PFI projects offset the significantly higher cost of finance. The report raises concerns that the current Value for Money appraisal system is biased to favour PFIs and it identifies a number of problems with the way in which costs and benefits for such projects are currently calculated.
The Committee recommends that the Treasury should: 

  • consider scoring most PFIs in departmental budgets in the same way as direct capital expenditure, adjusting departmental budgets accordingly;  
  • discuss with the Office for Budget Responsibility the treatment of PFI to ensure that PFI cannot be used to ‘game’ the fiscal rules; 
  • review the way in which risk transfer is identified; and 
  • the Value for Money assessment process should be subjected to scrutiny by the NAO.

(19 August 2011)

DCLG: Best Value statutory guidance
Guidance to councils considering changing funding to local voluntary and community groups and small businesses, on how best to achieve Best Value in their areas. In deciding how best to fulfil their Best Value Duty, councils are required to consult those using, or likely to use, a local service. This should include community and voluntary organisations. This new one page of statutory guidance on the Best Value Duty sets out some reasonable expectations of the way authorities should work with voluntary and community groups and small businesses when facing difficult funding decisions. It states that councils should not pass on larger reductions to their local voluntary and community sectors and small businesses than they take on themselves. (2 September 2011)

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House of Commons Public Accounts Committee: The failure of the FiReControl project
Examines the delivery and cancellation of DCLG’s project that proposed improving national resilience, efficiency and technology by replacing the control room functions of 46 local Fire and Rescue Services in England with a network of nine purpose-built regional control centres using a national computer system. The project was launched in 2004 but, following a series of delays and difficulties, was terminated in December 2010 with none of the original objectives achieved and a minimum of £469m being wasted. The report states that no one has been held to account for this project failure, one of the worst the Committee has seen for many years, and the careers of most of the senior staff responsible have carried on as if nothing had gone wrong at all and the consultants and contractor continue to work on many other government projects. DCLG now plans to spend a further £84.8m to secure the original objectives of FiReControl so that there is a co-ordinated response to national incidents. However, it is not clear how this extra spending will deliver value for money or achieve the objectives intended. (20 September 2011)

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Public Procurement (Miscellaneous Amendment) Regulations 2011 (SI 2011/2053)
These regulations, which come into force on 1 October 2011, amend the Public Contracts Regulations 2006 (SI 2006/5) (PCR) and four other procurement SIs. They: 

  • change the time limit within which tenderers can bring proceedings to challenge procurement decisions made by contracting authorities. The new limit is 30 days beginning with the date when the tenderer first knew or ought to have known that grounds for starting the proceedings had arisen, but the court may extend this to up to 3 months; 
  • modify the obligation on a contracting authority to send a ‘standstill notice’ prior to awarding a contract to a tenderer who has already been excluded from consideration, if the time limit for challenging that exclusion has elapsed; 
  • change what triggers the ‘automatic suspension’ of a contracting authority’s ability to enter into a contract when the award of the contract is challenged by proceedings before the contract is actually entered into; and 
  • update the grounds upon which an economic operator can be rejected under reg.23 PCR.

(24 August 2011)
See also PPN 06/11 (above).
Bevan Brittan has published an article Amendments to the Public Contracts Regulations 2006 that considers the amendments to the Public Contracts Regulations 2006 made by the Public Procurement (Miscellaneous Amendments) Regulations 2011, which come into force on 1 October 2011.

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Cases - UK

Alstom Transport v Eurostar  International Ltd and Siemens Plc [2011] EWHC 1828 (Ch) (Ch D)
The High Court has for the first time considered the availability of the new ‘ineffectiveness’ remedy under the procurement regime. Although the decision relates to an award by a utility entity, the provisions in the Utilities Contracts Regulations 2006 relating to remedies and the availability of the ineffectiveness remedy are very similar to those applying to the public sector under the Public Contracts Regulations 2006.
The case concerned E's decision to award a major contract for new trains to S.  A, the unsuccessful tenderer, contested this decision alleging breaches of the Utilities Contracts Regulations 2006 linked to the specification and also the evaluation and scoring of tenders, failure to comply with general EU Treaty principles and breach of an implied tender contract. At a High Court hearing in October 2010 the judge refused A’s application to prevent E from concluding the contract with S. In May 2011 A applied for a declaration of ineffectiveness of the concluded contract, contending that: 

  • there was an award of a contract without prior publication of a notice in the Official Journal; and 
  • there were breaches of the standstill requirements, thus depriving A of the possibility of starting or properly pursuing proceedings before the contract was entered into.

The court held, striking out that part of A’s claim, that neither of the grounds claimed for ineffectiveness were satisfied. The test of whether or not a notice had been publicised was mechanistic but there had to be a notice which was objectively capable of being related to the procedure and the contract. In this case the notice publicising the qualification system satisfied those requirements. The judge also held that the second ground was not available:  A was able to, and did, commence proceedings (the subject of the earlier hearing) before the contract was entered into and so had not been deprived of this opportunity. Obiter: A had submitted its claim outside the limitation period, so even if the ineffectiveness remedy had been available the claim would be time barred. (13 July 2011)

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Mermec UK v Network Rail Infrastructure [2011] EWHC 1847 (TCC) 
This case concerned when time started to run for the purposes of the three-month time limit under reg.45D of the Utilities Contracts Regulations 2006. NR wrote to M on 23 September 2010, informing them that M had not been successful in its tender for part of a maintenance regime involving high-speed examination of rail track and fittings, and advising them of its decision to award the contract to O. It also advised that the statutory standstill period would end on 3 October 2010. On 1 October, M wrote NR requested a meeting to discuss the scoring and evaluation as compared to that of the winning tender. This meeting took place on 14 October  but copies of the detailed scoring were not supplied. M issued proceedings on 22 December but did not serve them until 30 December 2010.
The court held that M’s claim was out of time. The court followed the ruling in Sita UK Ltd v Greater Manchester Waste Disposal Authority [2010] EWHC 680 (Ch) on the comparable provision in the Public Contracts Regulations (reg.47D), where the judge decided that the time period for the institution of proceedings was to be considered as three months from the time when the claiming economic operator knew or ought to have known of the alleged infringements of the Regulations, subject to any extension of that period. The court also followed Uniplex (UK) Ltd v NHS Business Services Authority (C-406/08), in which the CJEU held that time does not start to run from the time that legal advice has or should reasonably have been taken; broadly, the claimant must have knowledge of the basic facts which clearly indicate an infringement of the Regulations. Applying these tests, M had a knowledge of the basic facts which would indicate, objectively, that it had any arguable claim on 23 September 2010 or possibly within one or two days at the outside thereafter. Its claim would therefore fail; nor was there any reason to extend the time. (19 July 2011)

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Mears Ltd v Leeds City Council (No.2) [2011] EWHC 2694 (TCC)
This case concerned the Council's ALMO's procurement of capital improvement and refurbishment works for social housing in the Leeds area. M, an unsuccessful tenderer, brought a claim for breach of the Public Contracts Regulations and sought an order suspending the procurement and an order that the local authority re-run the procurement either in full or in part. M succeeded on one part of their claim but failed on the other parts and obtained an order for damages to be assessed but not for the procurement to be set aside which would have led to a new procurement process. M then sought an order for costs in their favour, alternatively an order for no lower than 80% to 90% of their costs.
The court held that M was properly characterised as the successful party and so, under the general rule, would be entitled to have their costs paid by the Council. There was no conduct in this case, other than the relative success and failure of the parties, which justified a different order for costs. However, significant time and costs were spent in dealing with claims on which M did not succeed and it was not just, fair and reasonable that M should recover the costs of dealing with those claims or that the Council should bear those costs. A substantial discount of 65% was required to reflect the significant costs which related to issues on which the Council had succeeded and M had not succeeded, to be balanced against the fact that, overall, M was properly characterised as the successful party. The court ordered that the Council should pay M 35% of their costs of the proceedings up to 25 May 2011, such costs to be assessed on a standard basis, if not agreed. (20 October 2011)

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Northern Ireland

First4Skills Ltd v Department of Employment and Learning [2011] NIQB 59 (QBD (NI))
F4S and another private sector contractor, X, tendered unsuccessfully for the DEL's award of a contract for the provision of training services. Both F4S and X wrote separately to DEL stating that they intended to bring a legal challenge to the contract award, so DEL announced to all bidders that they had decided to defer the award for an unspecified period. F4S and X then each initiated proceedings challenging the award, triggering the automatic suspension under Reg.47G of the Public Contract Regulations 2006. DEL applied to have X's automatic suspension set aside but the court refused this application. The next day DEL applied to have F4S's automatic suspension lifted.
The court held, refusing the application, that this application was a misuse of the court process. The court gave guidance on the case management approach where more than one aggrieved bidder sought to challenge the same procurement process. "Proceedings" in Regs.47G and 47H should be construed as "any proceedings", so where more than one disappointed bidder had initiated separate legal challenges, the court's dismissal of an application for an interim order under Reg.47H in any of the actions prohibited the execution of the contract with any party and so removed the need for any further such application in different proceedings. Here, it would be inappropriate and illogical for the court to make an order in the second application that conflicted with its order in the first application. It would also be incongruous to make an order in the second application that purported to authorise the contracting authority to take a course which would be in breach of the court's first order.
The court also looked at the merits of DEL's application, but ruled that it would follow the decision in X's proceedings. The balance of convenience was in favour of F4S,  taking into account F4S's cross-undertaking in damages and the reasonable prediction that these proceedings would be completed before the contract extension expired in March 2012. (30 June 2011)

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Henry Brothers (Magherafelt) Ltd v Department of Education for Northern Ireland [2011] NICA 59
This case concerned the procurement of the Northern Ireland schools multi-supplier construction framework. The ITT Clarification Note indicated that tenders would be evaluated in accordance with the weighting specified in the ITT documents, namely 80% qualitative and 20% commercial, and that the commercial section would be based on a submission of direct fee percentages, sub-contract fee percentages and indicative fee percentages for design services. Following their failure to be placed on the framework agreement HB, a consortium of building contractors, commenced proceedings under the Public Contracts Regulations 2006 claiming breach of statutory duty, breach of obligations under the EC Treaty and breach of contract. Coghlin J concluded that the DoE had used fee percentages as a mechanism for competitively assessing price and that its assumption that Defined Costs would be the same for each contractor was incorrect and amounted to a manifest error. The judge found for HB on the issue of liability and ordered that the framework agreement be set aside as the remedy for the breach. The DoE appealed, contending that the learned judge erred in finding that price was a mandatory criterion in the selection process for the most economically advantageous tender and that HB’s claim was statute-barred.
The NI Court of Appeal dismissed the appeal. The court agreed with the trial judge that the DoE was in error in considering that the use of fee percentages was a significant element of the arrangements which would introduce price competition and that this error could be properly described as manifest. On the issue as to whether the claim was out of time, the Regulations provided that proceedings had to be brought promptly and in any event within three months from the date when grounds for bringing the proceedings first arose unless the court considered that there was good reason for granting an extension.  Applying the principles laid down in Risk Management Partners Ltd v Brent LBC [2008] EWHC 1094 (Admin), the cause of action only arose where a breach of the Regulations was alleged and anticipation of a breach was not sufficient; also time ran from the date on which the claimant had the requisite knowledge that a breach of sufficient magnitude to justify proceedings had occurred. Therefore the earliest date on which the DoE could argue for an infringement was the date for receipt of the tenders. On that basis, the claim was five days late; however, the claim was lodged on the last day of the extension of the standstill period which had been extended because of ongoing correspondence and exchange of information between the DoE and HB.  The claim was therefore not statute barred. (26 September 2011)

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McLaughlin and Harvey Ltd v Department of Finance and Personnel [2011] NICA 60
This case concerned the DFP’s tender for a framework agreement that covered a range of projects including regeneration, further education, arts and sports development.  The OJEU notice was published in March 2007 and initial tender documents were issued in April 2007 with tender submission in October. M&H were informed in December 2007 that they had been unsuccessful. Five contractors were appointed to the framework. M&H had been ranked sixth, only 1% behind the contractors placed fourth and fifth. M&H brought proceedings under the Public Contracts Regulations 2006, claiming that it was only when the post appointment debriefing took place that they were made aware of the marking methodology used by the DFP. The core of their claim was that the methodology used constituted new and undisclosed criteria which were relied upon by the DFP in breach of the requirement of transparency and in a way which was unfair to M&H. The judge concluded that the DFP was in breach of the 2006 Regulations in failing to disclose the methodology in advance. The DFP appealed.
The NI Court of Appeal held, dismissing the appeal, that the 39 topics in the evaluation criteria were sub-criteria to which the attention of tenderers should have been drawn. The obligation of transparency was properly stated in recital 46 of the Procurement Directive 2004/18 as an obligation to ensure that tenderers were reasonably informed. It was clear from the judgment in ATI v ACTV Venezia (C-331/04) that in many cases the absence of knowledge about the weighting of the sub-headings would not lead to any breach of community law and it was for the bidder in each case to produce a case supported by adequate evidence before one of the exceptions set out in ATI could be established. Here, the information disclosed was not adequate in the circumstances and could have affected the preparation of the tender.  (26 September 2011)

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Rutledge Recruitment & Training v Department for Employment and Learning [2011] NIQB 61
This case concerned the DEL’s award of contract for providing training services in connection with a programme for getting unemployed persons back into work. RRT was an unsuccessful tenderer who initiated a legal challenge to the procedure, resulting in the automatic suspension of the procedure under reg.47G(1) of the Public Contracts Regulations 2006. DEL applied for an order to terminate the suspension. RRT contended that DEL had an obligation to give a “formal, written reasoned termination” based on the general transparency principle, and there had been various manifest errors of judgment in making assessments, including the application of the award criteria.
The court ordered that the automatic suspension should be lifted and found that RRT’s arguments had no substance. The court also stated that, in any event, the balance of convenience would favour lifting the suspension because of a “compelling need” to award the new training contract to help vulnerable and disadvantaged persons. (5 July 2011) 

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Elekta Ltd v The Common Services Agency [2011] CSOH 107
E challenged the CSA’s award of a contract to V for the supply, installation and maintenance of a range of radiotherapy equipment for five cancer centres in Scotland, along with staff training. Under the Public Contracts (Scotland) Regulations 2006 this challenge led to an automatic prohibition on concluding the contract. E had not tendered but had complained that the specification violated the regulations since in practice only V was able to supply the relevant equipment. The CSA applied to have the prohibition lifted.
The judge ordered the prohibition to be lifted, on the basis that E’s case had no reasonable prospect of success and that there was a public interest in the contract being awarded rapidly. The judge considered that the requirement regarding the linear accelerators was not unlawful since contracting authorities were free to decide on their own functional requirements: provided that the requirement was objectively justified, it was not unlawful, even if only one tenderer could meet it. He also rejected an argument that the CSA had not specified its functional requirement in such a way that it was willing to accept all products that could meet that functional requirement, but had favoured a particular make of product: the judge considered that the willingness to accept all equivalent products to that referred to was in fact indicated in the specification. The judge also rejected the view that a requirement for one supplier for the whole requirement was unlawful given that the compatibility requirement was not relevant for one of the five sites, the contract for which could have been tendered separately – the authority was entitled to decide that it wished to have a single supplier for the whole requirement. (21 June 2011

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Cases - Europe 

Please note that the following cases relate to procurements conducted by EU institutions and agencies under the EC’s Financial Regulations and other rules relevant to the particular institution or agency rather than the EU Procurement Directives. These cases are heard in the first instance by the General Court. CJEU case law on the Directives is applied by the General Court and its decisions can be appealed to the CJEU.  These decisions are therefore of interest but it should be borne in mind that the detailed procedural rules can differ from the provisions of the Directive.

Dredging International NV & Ondernemingen Jan de Nul NV v  EMSA (T-8/09)
This case decided by the General Court (GC) relates to a decision by the European Maritime Safety Agency (EMSA) to reject a tender for a contract for the services of stand-by oil spill recovery vessels. EMSA advertised the contract as being for a 3 year initial term with an option to extend for an additional 3 years subject to satisfactory performance. It also made it clear that there was a budget ceiling (contract value) which must not be exceeded. Dredging International submitted a tender on the basis of the full 6 year period which meant that the contract budget ceiling was exceeded and the tender did not relate to a 3 year contract as required. This was despite being warned that EMSA could then reject the tender. The GC upheld EMSA’s decision to reject the tender which failed to meet basic requirements relating to the maximum value and desired length of the contract. The GC also refused to set aside the decision to award the contract to the successful tenderer or to declare the awarded contract null and void and it rejected the applicant’s claim for damages. (13 September 2011)

Evropaiki Dynamiki v European Commission (T-232/06)  – Customs IT systems
The General Court (GC) has published a lengthy judgment concerning claims by European Dynamics (ED) of breaches by the European Commission in the conduct of a tender process for a contract for the specification, development, maintenance and support of customs IT systems. ED had led an unsuccessful consortium tender. The GC dismissed the action and in doing so it considered and rejected a number of claims made by ED. These included arguments that the EC should have extended time limits for return of tender documents after it had clarified or amended its requirements relating to information to be submitted by tenderers. ED also claimed that there had been a breach of the principle of equal treatment in that the incumbent tenderer had an unfair advantage due to its technical knowledge drawn from it experience as a tenderer and also that the EC’s decision on packaging the contract favoured the incumbent. In addition ED argued that the requirement on a new provider to assume “take over” costs amounted to unequal treatment.
The GC took the view that the EC was under no obligation to extend the tender deadline. In considering the position of an incumbent contractor the GC commented that such an advantage is in no way the consequence of any conduct on the part of the contracting authority. It went on to comment that unless an incumbent contractor were to be automatically excluded from any new call for tenders it is inevitable that an advantage would be conferred upon the existing contractor. The GC was also clear that the EC was free to decide on the choice of how to package a contract for tendering purposes. The GC was of the view that ED had over-emphasised the importance and impact on the take over costs on the tender outcome. The GC also concluded, after running through extensive extracts from the tender documents, that there was no manifest error of assessment in the conduct of the evaluation process. (9 September 2011)

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Evropaiki Dynamiki v European Commission (T-298/09) –  IT for Education Programmes
In this case European Dynamics (ED) challenged the European Commission’s decision relating to the establishment of two multi-supplier framework agreements for IT services in support of Education Programmes. The advertised opportunity was divided into two lots and the EC appointed 3 successful suppliers to each of the frameworks. In both cases, ED was ranked second and so was appointed as a framework supplier. It was provided with information relating to the first ranked supplier, ED’s scores and the first ranked supplier’s scores as well as comments from the evaluation committee. ED sought further more detailed information some of which was supplied.
The GC rejected all of the pleas made by ED including an argument that the first ranked tenderers should have been excluded due to previous contract breaches. The GC considered the information in relation to the contract award decision which had been supplied to ED and it was satisfied that the information was sufficient for ED to ascertain and understand the results obtained by the best ranked tenderer’s offer and to identify the characteristics and relative advantages of that offer. No further information was required to be disclosed. It also found that ED had failed to prove that there was evidence of a “discriminatory context” – this appears to refer to a allegation of potential bias on the part of the EC due to ED’s litigious activities in the context of other procurements. (20 September 2011)

Evropaiki Dynamiki v European Commission (T-86/09) – Computer services for Maritime Affairs and Fisheries
The General Court again dismissed an action for annulment and claim for damages brought by European Dynamics (ED). This claim related to the decision by the European Commission to award a contract for the provision of computer and related services, including the maintenance and development of the information systems of the Commission’s Maritime Affairs and Fisheries Directorate-General.
The GC rejected ED’s claims that the EC had failed to state relevant reasons for its decision not to appoint ED. It also found that there was no breach of the transparency principle. ED argued that the successful tenderer should have been excluded on the grounds of serious breaches of contractual obligation under another contract but the GC held that as there was no administrative penalty applied this did not constitute a ground for mandatory exclusion under the relevant rules. The GC considered and dismissed a number of other claims including allegations of bias due to negative views of ED expressed by members of the evaluation committee in the past. It confirmed a contracting authority has a “broad margin of assessment when deciding in advance what factors are to be taken into account in the evaluation of tenders. (22 September 2011)

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Evropaiki Dynamiki v European Investment Bank (EIB) (T-461/08)
The EIB is governed by its own internal procurement procedures but the General Court (GC) confirmed that the fundamental EC Treaty rules and principles apply. 
This case relates to the establishment of a single supplier framework agreement for support for the EIB’s loans front office IT system. The EIB received and evaluated 7 tenders. ED’s tender was ranked second and was therefore unsuccessful. The EIB then wrote to the unsuccessful tenders notifying them of its decision. Due to an administrative error it failed to write to E. It then went ahead and signed the contract with the successful tenderer. ED learned of the award when the Contract Award Notice was published in the OJEU at which point ED complained to the EIB and requested that the award procedure be suspended or the contract annulled. ED also requested full information relating to the award decision including copies of the successful tender and a detailed copy of the evaluation committee’s reports on its tender and the successful tender.
The GC dismissed a number of ED’s claims relating to award criterion used, It did, however, find that the EIB had failed to provide adequate reasons for its contract award decision and that in failing to notify ED of its decision it had treated ED unequally and deprived ED of its right to an effective remedy. It also found on facts that the successful tenderer had altered its bid prior to the final award decision being made (by changing the staff identified in the tender as delivering the service and thus also rates) and that this vitiated the award decision by potentially distorting the competition and infringing the principles of equal treatment, non-discrimination and transparency. The GC dismissed ED’s claim for damages but it did annul the award decision and ordered the EIB to pay costs. (20 September 2011)

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CJEU cases

The Court of Justice of the European Union (CJEU) has also considered two appeals by European Dynamics:

Evropaiki Dynamiki v European Maritime Safety Agency (EMSA) (C-252/10) – “SafeSea Net”
This case concerned an appeal by European Dynamics (ED) against a decision of the General Court (Case T-70/05) relating to the award of a contract by EMSA which is an agency of the European Commission. The General Court (GC) had dismissed ED’s application for the annulment of a decision by EMSA not to accept a tender submitted by ED. The CJEU rejected all of ED’s claims, dismissed the appeal and ordered ED to pay costs. In considering arguments relating to the alleged failure to disclose sub-criteria and weightings the CJEU confirmed the use of the three conditions established in ATI case (Case C-331/04) and the need for evaluation committees to have some leeway in carrying out their tasks. (21 July 2011)

Evropaiki Dynamiki v European Central Bank (ECB) (C-401/09) – IT consultancy and development services
This case concerned an appeal by European Dynamics (ED) against a decision of the General Court relating to the award of a contract by the ECB for an IT consultancy and IT development services contract.  ED were part of a consortium, E2Bank, which submitted a tender to the ECB. The E2Bank consortium tender was ranked fourth out of five tenders and so E2Bank were not invited to participate in the subsequent negotiation process.  The invitation to tender laid down, amongst other requirements an obligation on tenderers to obtain authorisation under the German law governing the supply of temporary staff and stated that tenderers were required to give a firm commitment to be in possession of the permit to supply temporary staff when the contract was signed. ED claimed, amongst other things, that this requirement was discriminatory. The GC rejected all of ED’s arguments. On appeal to the CJEU ED challenged a number of the GC’s findings including those relating to the requirement for a permit. The CJEU rejected all of ED’s claims, dismissed the appeal and ordered ED to pay costs. (27 January 2011)

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News Cabinet Office: Francis Maude reveals £3.75 billion in savings
The Cabinet Minister has revealed that the Government’s efficiency programme has delivered £3.75bn of cash savings in the ten months from May 2010 to March 2011. The savings figures have come from efficiency and reform measures implemented across government, such as reducing discretionary spend, smarter procurement and reducing the size of the Civil Service, and have been independently audited. (1 August 2011)

Cabinet Office: Using Contracts Finder
To help with familiarisation of the Contracts Finder system, the Cabinet Office has developed a simple presentation to show how the system works along with a set of frequently asked questions. Organisations that are not yet set up on Contracts Finder must complete the template and submit it to businesslink. This forms part of the necessary process to identify an individual (or set of individuals) within departments who control their organisation's publishing rights within the Contracts Finder system.

Cabinet Office: Mystery Shopper results
The Mystery Shopper initiative allows business owners to report instances where small and medium sized enterprises (SMEs) or other suppliers are shut out of the market so that the Cabinet Office can investigate and deal with them, opening up the market for SMEs. The latest figures show that the Cabinet Office has resolved a total of 14 cases for SMEs over the past three months. 

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The Government Procurement Services legal services framework agreement allows customers throughout the public sector to place orders with Bevan Brittan LLP under standard terms and conditions of the agreement. We are appointed to the Full Commercial Panel and can therefore provide advice on a wide range of legal services covered by the framework, including: 

  • IT
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  • Competition law
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  • Regulatory law

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