EU Remedies Directives Update Florence Gregg figpc ltd, M:

Purpose of the new Remedies Improve compliance with the public procurement procedures Improve the effectiveness of the review procedures Introduce ineffectiveness (contract cancellation) as a remedy for serious breaches Bring the implementation of the mandatory standstill period into line across the EU 2 © figpc ltd 2010

Key date – 20 December 2009 Procurements started on or before 19 December 2009 fall under the old legislation Procurements started on or after 20 December 2009 fall under the new legislation Start of a procurement is the date when the procurement starts Mini-competitions and call-offs from some frameworks will continue to fall under the old legislation until the framework ends and the resultant contracts end 3 © figpc ltd 2010

Changes apply to All contracts valued above the relevant EU threshold including frameworks Call-offs using frameworks where the value exceeds the EU threshold Above threshold contracts for Part B services Use of Dynamic Purchasing System for above threshold procurements 4 © figpc ltd 2010

Changes do not apply to Below threshold contracts Services concessions Because the main procurement rules do not apply However, you may decide to apply a standstill period voluntarily – more on this later 5 © figpc ltd 2010

Key differences Changes to the mandatory standstill period Timescales for closure of standstill period Rules for calculation of end date Level of detail to be provided in the standstill notification communications Introduction of ineffectiveness Greater remedies introduced In addition to those already available under the old legislation 6 © figpc ltd 2010

What does this mean for the buyer? S/S notification to be sent as soon as possible after award decision made It is bespoke, personalised, communication outlining why the bidder not awarded the contract or admitted to the framework Requires attention to detail when Developing award criteria and how they will be evaluated Recording reasons for decisions during evaluation Drafting the individual S/S notifications 7 © figpc ltd 2010

Tenderers S/S notification Award criteria Characteristics and relative advantages in winning submission(s) Score (if any) obtained by the recipient Score (if any) obtained by the successful bidder(s) Reasons why the recipient didnt meet the technical specification Name of the bidder awarded contract or admitted to framework Precise statement of end of the S/S period 8 © figpc ltd 2010

Oral debriefing (if requested) Be careful of discrepancies between written S/S notification and any oral debriefings If doing oral debriefings Ensure they are carefully planned Ensure clear records are kept – who said what Consider recording meetings/conversations? If issues arise, College may consider Restarting S/S period and, if required, Providing the full reasons for the decisions taken i.e. a more detailed S/S notification 9 © figpc ltd 2010

Exceptions to need for S/S period Below threshold procurements When a supplier is admitted to a DPS Where no obligation to advertise in OJEU Below threshold Part B services* Negotiated without call for competition* Only 1 tenderer and no candidates Above threshold call-offs* from framework or DPS* * However, may use voluntarily to mitigate risk of ineffectiveness 10 © figpc ltd 2010

Old Remedies Pre-contract Order a temporary injunction Set-aside decisions taken unlawfully Order documents are amended Award damages Post-contract Award damages 11 © figpc ltd 2010

New Remedies Pre-contract Order a temporary injunction Set-aside decisions taken unlawfully Order documents are amended Award damages Automatic suspension of contract award Post-contract Award damages Order prospective ineffectiveness where serious breaches and applied a fine Provide for alternative remedies (contract shortening, fines or both) in situations where ineffectiveness is inappropriate 12 © figpc ltd 2010

What is ineffectiveness? Awarded contract is deemed to be ineffective Application is prospective Civil financial penalty (a fine) on the College Decided on a case-by-case basis by the court Will take account of all relevant factors Will be effective, proportionate and dissuasive Court may rule on consequential matters Consider setting up pre-nuptial agreement 13 © figpc ltd 2010

However Court may decide to save the contract from ineffectiveness Where important reasons that the contract continue Will not relate to economic concerns of the College Then, alternative penalties will be applied Contract shortening and / or A civil financial penalty 14 © figpc ltd 2010

Grounds for ineffectiveness Ground 1Failure to advertise (in OJEU) ground - VEAT notice Ground 2Combined breaches ground of the procurement rules and standstill Ground 3Call-off procedural breach ground 15 © figpc ltd 2010

Ground applies if 3 aspects present If all 3 apply, then the Court may declare the call-off contract ineffective a.Call-off is above EU threshold, and b.College voluntarily choose not to apply the S/S period, and c.An infringement of either mini-competition rules under a framework or procedural rules in a DPS 16 © figpc ltd 2010

Time limits - ineffectiveness Default 30 days Within 6 months of contract award Can be shortened publishing the contract award OJEU contract notice was published: inform tenderers and candidates of the conclusion of the contract; include a summary of reasons for decision. If S/S notification sent, then send final communication to confirm award of contract Negotiated procedure without prior publication of contract notice - publish a contract award notice including the justification for use of negotiated procedure 17 © figpc ltd 2010

Colleges should: Update your internal policies and procedures Beware of Contract creep Changing the scope of a existing contract Misclassification of contract type Supplier mergers, takeovers etc Ensure staff are aware of changes Act to limit risks posed by new severe remedies In concerned seek advice from FE Team 18 © figpc ltd 2010

Any questions? 19 © figpc ltd 2010