PLC Public Sector reports:
While the focus of much of the country has been on the general election campaign and talk of coalition deals, developments in public procurement law and policy have continued to come thick and fast in the last 6 weeks.
In this post we review these developments highlighting the key issues for those who fear that something may have slipped off their radar amid all the excited talk of “the New Politics”.
Starting with case law developments (in chronological order):
- Wall AG v City of Frankfurt (ECJ):
Key point to note: the Treaty principlesmay require an unregulated contract (in this case, a service concession) to be readvertised on a material variation (in this case, a change of material sub-contractor).
- Commission v Spain (ECJ):
Key point to note: when drafting procurement documents (in particular the OJEU notice), a contracting authority should take care to make sure that it covers all of the proposed elements of a project. If it does not, if additional works are required they may need to be re-advertised.
- Croft House Care Ltd & Ors v Durham County Council (High Court):
Key point to note: the Council failed to pursuade the court that disclosing details of its evaluation procedures during court proceedings relating to the disputed tender would infringe duties of confidentiality and also make it impractical for it to run future tender processes.
- Community Care North East v Durham County Council (High Court):
Key point to note: contracting authorities should ensure that in all tender documentation they reserve a right to abandon the procedure.
- Commission v Germany (ECJ):
Key point to note: exclusions from the public procurement regime will always be interpreted in a narrow manner, limiting their scope to what is strictly necessary to safeguard the interests that they allow member states to protect.
- Apcoa Parking (UK) Ltd v City of Westminster (High Court):
Key point to note: it is still for the aggrieved tenderer to show that the balance of convenience means that an injunction should be granted and that other remedies will not be adequate (although this procurement was subject to the old remedies regime, it shows that the implementation of the new remedies directive has not yet caused a fundamental shift in attitude of the courts).
- Azam & Co v Legal Services Commission (High Court):
Key point to note: the Public Contracts Regulations 2006 do not require a contracting authority to expressly inform existing providers of the deadline for submissions when the contract or framework agreement is re-tendered and also that the principle of proportionality does not automatically require a contracting authority to grant an extension to a tenderer that fails to submit a tender on time.
- Club Hotel Loutraki (ECJ):
Key point to note: any member of a consortium should be entitled to seek legal redress for failings in the procurement process (the judgment also provides useful guidance on mixed contracts).
One case we will not be seeing in the ECJ is the Osbaldwick development in York, as a commitment to open up all stages of the development to competition, together with last year’s OGC guidance on development agreements, means that the Commission has closed its case.
Moving away from case law, and less than 6 months since the new remedies directive was implemented in the UK, we have also seen a Commission announcement that the whole the public procurement regime is up for review and a European Parliament statement criticising the regime and agreeing that fundamental change is needed. What is most interesting about these developments is that there seems to be some question as to whether the types of change being formulated by the Commission are the types of change that the Parliament wants to see – in particular, see the Parliament’s comments on the proposed legislation of service concessions.