PD Teesport Limited

Report
Procurement Law
Proposed EU Directives
Paul James, Eversheds LLP
SOPO Conference, 12 November 2012
Public Directive key changes
• Abolition of part B services except
– social, health, rescue, prison and education services
“services to the person”
– rescue, firefighting and prison services
– hotel and restaurant services
– legal services
• subject to “light touch” regime
• €500,000 threshold and compliance with transparency/
equal treatment
Public Directive key changes
• Lighter regime for “sub central” bodies (non GPA bodies so
not central govt and NHS)
– agree shorter time limits with bidders (as low as 10
days for ITT)
– annual notices can replace specific OJEU notices
• Exclusions for certain services contracts including radio
media services, arbitration, conciliation and raising capital
Public Directive key changes
• Procedural choice
– negotiated procedure and competitive dialogue both
selectable
– negotiated procedure rules on confidentiality, selection,
use of BAFO
– CD to allow negotiation of terms post selection,
provided it does not materially amend essential parts of
procurement and does not risk distorting competition or
causing discrimination
Public Directive key changes
• New “Innovation Partnership”
• under negotiated procedure for “establishing a
structured partnership for the development of
innovative product, service or works and the
subsequent purchase of the resulting supplies, services
or works”
• can be with one partner or several partners conducting
separate research and development activities
Public Directive key changes
Procedure
Now
Proposed
Open
52 (45) days to tender
22-36 days if valid PIN
35 (30) days
15 days
Restricted
37(30) days for PQQ
40(35) days to tender
22-36 days to tender if
valid PIN
30(25) days
30(25 days
10 days
Negotiated
37(30) days for PQQ
No time limits for tender
30 days
30 days
CD
37(30) days for PQQ
30 days
* timings in brackets apply if electronic notice/ documents
Public Directive key changes
• Express provisions on the Teckal exemption
– at least 85% of activity for the owners (turnover for
services in last three years will be considered)
– no private participation
– multi-party owners acceptable if co-operative, cost
reimbursement only and in the public interest and
participating contracting authorities do not perform
more than 15% of activities
Public Directive key changes
• Express provision on “substantial modifications”
• Modification substantial if above relevant threshold and
10% of original contract value but not if
– a diligent authority could not foresee it and
– does not alter the overall nature of the procurement
and
– price increase not over 50% of original contract value
• Electronic procurement pushed further
– all OJEU notices, specifications and supporting
documents electronic within 2 year transition
– CPBs must be fully electronic
Public Directive key changes
• SME encouraging provisions including
– explanation of why not sub-dividing contracts
>€500,000 into lots
– self declaration in PQQs rather than full information
disclosure
– no re-submission of info to the same authority if sent in
last 4 years and still valid
– no min turnover requirements over 3x contract value
unless exceptional circumstances
Utilities Directive additional points
• “Special and exclusive rights” don’t arise if granted
through a transparent/objective process
• Oil/gas exploration utilities no longer covered
• Innovation partnership introduced but not competitive
dialogue
• Limiting frameworks to 4 years
• “Activities directly exposed to competition” exemption
simplified (Article 30 exemptions)
• Affiliated undertaking/joint venture exemption
– Teckal style exemption included if >90% for the utility
– affiliates under dominant influence and 80% of turnover
for the affiliate
© EVERSHEDS LLP 2011. Eversheds LLP is a limited liability partnership.

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