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Procurement Update - December 2019

  • Ireland
  • General

20-12-2019

Our team would like to thank all of our clients and colleagues for engaging with us in 2019. We wish you all a happy holiday and look forward to working with you again in 2020. 

The Eversheds Sutherland Procurement team is pleased to provide a brief update on some recent developments in this area, which will be of interest to procurement practitioners and those tendering for public contracts in Ireland and Northern Ireland.

If you would like more information on any of the issues raised, please do not hesitate to contact us.

New Procurement Thresholds

New thresholds for regulated contracts come into effect on 1 January 2020.

For more details, see our note available here.

Publication of 2018 Report from the Interim Procurement Reform Board to the Minister for Public Expenditure and Reform

The Interim Procurement Reform Board issued its first annual report on 2 December 2019. Setting out key achievements in driving reform of procurement expenditure, the report sets out the activities of the Board in 2018 as well as identifying key tasks for 2019 aimed at ensuring State spending delivers value for money while progressing Government policy and delivery to citizens. The report can be accessed here.

Launch of revised Public Spending Code

This month, the Minister for Public Expenditure and Reform in Ireland published the updated Public Spending Code. The Public Spending Code is a set of rules and guidance which seeks to ensure value for money is secured in major public projects. The revised code takes into account lessons learned from the expenditure overrun on the new children’s hospital in Dublin and will apply with effect from 1 January 2020.

The revised code will provide for additional assessment phases for projects, so as to allow more opportunity for risks to be identified and presented to the Government or individual departments. The revised code is informed by best international practice and includes stronger provisions on risk management, clearer “decision gates” during the project lifecycle, and external independent review to provide a challenge function at key stages.

The revised Public Spending Code can be found here

Case C-402/18, Tedeschi Srl and Consorzio Stabile Istant Service

A recent decision handed down by the CJEU considered whether EU procurement law permits restrictions on the extent to which subcontracting can occur. The case involved a call for tenders by the University of Rome for cleaning services. A challenge was brought by the bidder ranked second, who claimed that the intention of the winner to sub-contract over 30% of the services infringed Italian legislation stipulating that no more than 30% of the total value of the contract may be sub-contracted. The Italian Council of State referred a question to the CJEU regarding the compatibility of the Italian law with EU procurement law. The CJEU held that Directive 2004/18 must be interpreted as precluding national legislation which imposes a limit of 30% on the value of a contract which may be subcontracted.

Amey Highways Limited v West Sussex County Council [2019] EWHC 1291

Contracting authorities considering abandoning a procurement process should take note of this case from earlier in the year, particularly when litigation is already initiated at the time that the decision to abandon is made.

Amey Highways Limited (“Amey”) was the second placed bidder in a highways contract put out to tender by West Sussex County Council (“the Council”). Having lost out on the award by less than 1%, Amey challenged on the basis that the Council had made manifest errors in its scoring evaluation.

Once notified that proceedings had issued, the Council terminated the procurement, and announced it would re-procure the contract. Amey then challenged the decision to terminate, on the basis that it was a deliberate attempt by the Council to deprive Amey of its cause of action.

The High Court noted that in abandoning the procurement, the Council had not acted unlawfully but did, however, find that while the Council was entitled to abandon, this did not affect accrued causes of action, meaning that the damages claim advanced by Amey could continue.

For more information, please contact:

Peter Curran at PeterCurran@eversheds-sutherland.ie

Aine Smith at AineSmith@eversheds-sutherland.ie

 

  

This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full terms and conditions on our website.

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