1. CMG Procurement Litigation Conference October 2017
Aaron Boyle
Partner
Arthur Cox

2. Disclosure and Participation Dealing with Losing Bids
To be discussed…
Disclosure and Participation
Dealing with Losing Bids
National Review Procedures

3. The Fundamental Principles of Disclosure
Transparency and equal treatment underlines disclosure obligation
What does this mean?
Bidders need to understand what is for tender and how a winner will be picked
The test regarding bidders’ required understanding:
The reasonably well informed and normally diligent tenderer
Award criteria to be formulated so that RWIND tenderers interpret them uniformly
If understandably and plausibly understand in different ways then breach of transparency
Court to put itself in shoes of hypothetical tenderer – tenderer in relevant industry
Evidence of what tenderers actually thought criteria mean not determinative/irrelevant

4. Disclosure and Participation
Applicable standard for disclosure depends on whether/which procurement rules apply
Above threshold – then specific requirements such as…
Scope of selection criteria - Article 58
Award criteria – Article 67
Light Touch Regime
Publication of notices (Article 75)
Apply general principles (Article 76)

5. Disclosure and Participation
Courts have sought to distinguish “fully regulated” versus “light touch”
“Covert” application of the Directive to partially/unregulated contracts
But obligation to be transparent does apply
Just up to awarding authorities to demonstrate how complied with

6. Disclosure Obligations
Below Threshold
V similar to “light touch” only fewer (i.e. no) regulations
Where cross border interest, apply general principles
Cross border interest? – Tecnoedi v Comune di Fossano
Objective but not abstract – positive assessment
Value
Place of works/services to be performed
Technical/specific characteristics

7. What can you decide not to Disclose?
ATI Principles – leeway for evaluators
Non disclosure permissible if:
Not alter criteria for award
Could not affect how tenders are prepared
Not give rise to discrimination

8. ATI Principles in Action
Dimarso v Vlaams
50/50
Low/medium/high used for quality
Not disclosed – criterion neutralised
Restatement of the law - Methodologies not need to be disclosed where:
Not alter award criteria
Not affect how tenders could be prepared
Not discriminate
Hard test to satisfy – consider transparency

9. Basic Standard for Disclosure – All Contracts
Rules drawn up in a clear, precise, unequivocal manner
All reasonably informed tenderers understand their exact significance and can interpret them in the same way
Disclose all factors which will affect evaluation/outcome
Award criteria
Sub criteria
All applicable weightings
Methodology applied to weightings

10. Disclosure in Contracts – UK Transparency Principles
CCS Published guidance 16 Feb 2017
Fundamental presumption in favour of disclosure
Set out in tender docs what information will be disclosed after award
What could be withheld
The way pricing arrived at
Certain IP
How contractor expects to yield financial return
Transparency section of Department websites
Broad transparency clauses in Government contract
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11. Disclosure in Court – UK Procedures
Guidance note from TCC
Early disclosure may be justified
Use coloured paper for confidential info!
Court files open for inspection –restrictions on inspection should be limited
Confidentiality rings
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12. Dealing with Losing Bids
Bidders
know your rights and what information entitled to (RPS case and Reg 55 requests)
Did you seek clarifications during bid phase?
Contracting authorities
Must have a comparison with preferred bidder
Regulations require characteristics and relative advantages of successful tender
query use of “should have included”/ “would have benefitted from” approach

13. Template for Dealing with Losing Bid?
Template Responses?
RPS case says no
How should commentary look?
“under this criterion your response was considered [good/very good etc.]” (refer to disclosed methodology language)
“The successful tender submitted a [marginally/significantly better etc.] response because [insert example with sufficient detail]”
Must be able to stand over decision – reluctance to provide reasons generally causes more problems than disclosing them

14. Losing Bids - Importance of record keeping
Energy Solutions EU Limited v Nuclear Decommissioning Authority
£7 billion clean up contract for 12 nuclear sites
Conscious decision to destroy contemporaneous records
Judge highly critical
Importance of audit trail – evidence of decision making
What information before the decision makers?
What records should be kept?

15. National Review Procedures
Tender Advisory Service
Live tender processes only
The High Court
Obstacles to challenge?
Statement of Grounds – framing the complaint
Discovery
Not naturally or by implication out of existing grounds?
Or expansion by stealth?
Relatively narrow interpretation by Irish Courts (BAM PPP v NTMA)

16. Losing Bids and National Review
OGP Guidelines August 2017
Reference to TAS
Dealing with queries from unsuccessful bidders?
Contents of standstill letters?
No substantive guidance
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17. Concessions Directive
What is a concession?
Café, car park, restaurant, land swaps? PPP?, operating lease model?
Any structure where access to State “asset” combined with right for service provider to make a return
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18. Concessions Directive
New Regulations May 2017
Applies to utilities and public bodies
Threshold of €5,225,000 (turnover of contract)
Similar to light touch regime
5 years or longer where investment requires it
Remedies Regulations apply to concessions
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19. Fall off in volume of procurement challenges to Court?
Summary
Transparency guiding principle for all tender processes – captured or not
Fall off in volume of procurement challenges to Court?
Better behaviour or better things to be doing?
Concessions - Where are all the advertisements?

20. Thank You