Top Tips From Ireland’s Procurement Lawyers
I chaired CMG’s www.cmgevents.ie recent conference on procurement and tendering.
Hereunder is a summary of some of the points made by the procurement lawyers who presentted.
Tender Evaluation: Courts look at situations where there is a manifest error. Important that evaluators are not substituted during the evaluation process. The evaluation report, including Conflict of Interest Declarations, should be signed by all evaluators. Keep notes. Give evaluators plenty of time to assess tender responses prior to the evaluation meeting.
Clarifications: Cannot change essential conditions (for example introducing new technical specifications) by means of clarifications prior to submisiosn daedline. Best practice is that clarifications should be sought at evaluation stage, but in so doing a non-compliant submision should not be made compliant as a result of a clarification. Responses to clarifications are contractually binding.
Abnormally low tenders: Should seek clarifications if an abnormally low priced tender (that is not defined) is submitted. Decision taken should be carefully recorded in Procurement Audit Report.
Competitive Dialogue/Competitive Procedure with Negotiation: The use of these procedures must be justified and so recorded in procurement audit report. Main difference is that under CD it is possible to negotiate with preferred tender post Best and Final Offer stage. European Institute of Public Administration has published detailed guidance.
Results Letters: Use OGP templates (January 2019). Communicate characteristics and relative advantages of successful tenderer to compliant tenderers. Only possible to determine ‘relative’ advantages when evaluation of all submissions is completed. Detailed reasons should be given with reference to specifics. Respect tenderer’s confidentiality. A tenderer that is deemed as non-compliant does not need to be provided with a detailed briefing. No need to provide detail debriefing if scores are the same. Detailed narrative should be given to procurements with a contract value below €25,000. No obligation to give a tenderer’s ranking but it is best practice.
Standstill: Essential that a standstill notice letter must give sufficient information to enable an unsuccessful tenderer to decide whether there are grounds for seeking review.
Formal submission of legal papers starts the process.
Debriefing Meeting: Not recommended: ‘too dangerous’. Not a requirement under the procurement rules. Prepare carefully if a de-briefing meeting is agreed. Conduct an independent review of scoring where appropriate. The standstill (30 day) clock will not be reset if a debriefing meeting is held.
Keeping Records: A Procurement Audit Report, with supporting documentation (including evaluators’ notes), must be prepared and kept for three years for all tender competitions above EU threshold and in situations below the threshold where cross-border submissions received. Best practice is to prepare a PAR to support internal audit function.
Pre-tender Consultation: Permissible based on clear rules of engagement but must not result in a violation of the principles of transparency and non-discrimination. No guidance in Regulations about conduct of market consultation. One-on-one meetings most useful. All pre-tender consultation documents must be published. Best practice for high risk procurements.
Estimated contract value: Must be included in contract notice.
Discovery: Recent Court of Appeal ruling may make it more difficult to get discovery of documents.
Confidentiality: Publication of tender price in Contract Award Notice may be withheld if certain conditions met e.g. it might harm legitimate commercial interests of tenderer.
Freedom of Information: Office of the Information Commissioners guidance notes should be consulted. EU procurement law has primacy over Ireland’s FOI Act. Specific rules apply in relation to access to information on the environment.
Know How:https://beta.courts.ie/is a useful web site for sourcing procurement cases.
The material in this post is purely for information and discussion and does not purport to advise on matters of law. Any persons affected by the matters discussed in this post should seek legal advice on their particular situation.