EU
EU Public Procurement Portal
The Commission launched a procurement knowledge hub which includes information on rules governing public procurement in Member States, and on whether bidders are eligible to participate, based on WTO rules and bilaterial EU trade agreements.
Energy Efficiency
Commission Recommendation (EU) 2024/1716 sets out guidelines for the interpretation of Articles 5, 6 and 7 of the Energy Efficiency Directive as regards energy consumption in the public sector, renovation of public buildings and public procurement.
Damages for Loss of Opportunity
In Case-547/22, the Slovak Court requested a preliminary ruling in an action for damages brought by INGSTEEL, following a finding that it had been unlawfully excluded from a procurement on the basis of failing to meet economic and financial requirements in the call for tenders.
Article 2(1)(c) of the Remedies Directive requires Member States to ensure that review measures include provision for powers to award damages to persons harmed by infringements. The CJEU has found that this prevents national legislation or practice that excludes the possibility of a tenderer (who has been excluded from a procedure because of an unlawful decision of the contracting authority) from being compensated for damage suffered because of the loss of the opportunity to participate in the procedure.
Ongoing proceedings concerning extension of Concession Agreements
C-728/22 to C-730/22 concern requests for a preliminary ruling on compatibility with EU law of an Italian 'technical extension' scheme for expired concessions awarded for bingo gaming activities. It was adopted by the Italian legislature in 2013 pending the carrying out of a new procedure to re-award the concessions.
Under the scheme, operators pay a monthly fee, which was not a condition of the initial award of the concessions. The fee applies to operators at a fixed rate, regardless of their financial capacity, and has been progressively increased since its adoption. It is a requirement for participation in a future tender procedure.
Advocate General Medina indicates that these cases will provide an opportunity to rule on the scope of the Concessions Directive. Her Opinion indicates that the Directive must be interpreted as applying to service concessions awarded before the Directive entered into force, but which have been repeatedly extended by legislation after the Directive's entry into force, if the conditions of the initial award have been substantially amended. Further, the Directive must be interpreted as preventing national legislation, or an interpretation of national legislation, which permits several elements akin to those in the Italian scheme.
IRELAND
Reporting on the use of Central Arrangements
Circular 09/2024 requires certain public bodies to report on their use of central procurement arrangements. The requirement is intended to support public bodies in ensuring good procurement practice.
NORTHERN IRELAND
Discovery Judgment
In Tullyraine Ltd v Department of Infrastructure [2024] NIKB 50, the plaintiff challenges a procurement process for a works contract in respect of which it was unsuccessful, having scored full marks for quality. The plaintiff seeks early discovery, submitting that it cannot understand the reasons for the marks allocated and is unable to take an informed view of whether there has been an infringement. The High Court has ordered discovery of two categories of documents: internal guidance supplied to the assessment panel to assist in marking of tenders, and notes and records of the panel's assessment of quality submissions.
UK
Public Procurement Act 2023
The UK Government's guidance centres around four main phases of a commercial pathway for procurement - plan, define, procure and manage – and is being made available here. It has recently been updated with guidance on the define and procure phases.
Six months to seek Declaration of Ineffectiveness
The UK Public Contracts Regulations provided that the time limit for seeking a declaration of ineffectiveness is six months from the date on which the contract was entered into, unless the 30-day time limit applied because certain conditions were met (a contract award notice was published where the contract is awarded without prior publication, or the economic operator was informed of the conclusion of the contract and a summary of the relevant reasons). There is similar, but not identical, provision in Irish Regulations.
The Court of Appeal in England and Wales held in Lancashire County Council (appellant) v Brookhouse Group Ltd (respondent) [2024] EWCA Civ 717 that the six-month time limit, and not the 30-day time limit, applies to the respondent's application for a declaration of ineffectiveness.
The background was that the contracting authority in July 2022 entered into a development agreement with a subsidiary of a company to which it had already awarded a contract, such that no competition was required. The contracting authority did not publish a contract award notice. It informed the respondent about the agreement in August 2022 and gave reasons why it considered a competition had not been required in September 2022. The respondent applied for a declaration of ineffectiveness in January 2023, on the ground that there should have been prior publication of a contract notice. The contracting authority argued that the claim was outside the 30-day time limit, but neither the court of first instance nor the Appeal Court accepted this was the correct time limit. It had been open to the contracting authority to reduce the challenge time limit to 30 days by publishing a contract award notice, but that had not been done.
This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.