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London • Dublin • Belfast

Procurement Law Update. London • Dublin • Belfast. Edward Quigg BEng LLB MIEI MCIArb FInstCES. Overview. New Remedies Directive Weightings and marking schemes Frameworks Correcting Errors Sustainability. New Remedies Directive . Remedies Directive 2007/66/EC

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London • Dublin • Belfast

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  1. Procurement Law Update London • Dublin • Belfast Edward Quigg BEng LLB MIEI MCIArb FInstCES

  2. Overview • New Remedies Directive • Weightings and marking schemes • Frameworks • Correcting Errors • Sustainability

  3. New Remedies Directive • Remedies Directive 2007/66/EC • To be given effect by 20th December 2009 • Harmonise standstill arrangements • Possible review procedure, which if adopted means award is frozen until outcome of review • Introduce ineffectiveness as a remedy for illegal direct awards (cancellation of contracts entered into either retrospectively or prospectively) • Think of effect on funders decisions!

  4. Weightings and Marking Scheme Disclosure • Universale-Bau AG, Case C – 470/99 • ATI v. ACTV Venezia et alia, Case C – 331/04 • Community law does not preclude a jury from attaching specific weight to the subheadings of an award criterion, provided that that decision : - • does not alter the criteria for the award of the contract set out in the contract documents or the contract notice; • does not contain elements which, if they had been known at the time the tender was prepared, could have affected that preparation; • was not adopted on the basis of matters likely to give rise to discrimination against one of the tenderers." • McLaughlin & Harvey Nr 2 • 39 items to be disclosed but possibly not the 186

  5. IST Framework Criteria

  6. Frameworks • Call Off Options • As set out fully in the framework, or, • By reopening competition between all EO’s capable of carrying out the work • Rotation • KPI • Lottery • All

  7. Correcting Errors • In ITT and PQQ • Ensure right is reserved • Allow additional time • Ensure equal treatment and transparency • In Bids • Ensure right to seek correction is reserved • Have pre-defined procedure • Not fundamental issues • Ensure equal treatment

  8. How to Assess Sustainability • In the Specification • Use proportionate contractual remedies, LADs or KPI matrix which has effect on amount paid • At selection stage • Can EO show capability to meet specification? • But NOT at award stage • unless essentially linked to MEAT

  9. New Info Source • For • links to all legislation, cases and policy documents • Guide to Procurement obligations • An interactive Procurement Forum www.QGProcurement.com

  10. Questions? Thank You

  11. London • Dublin • Belfast

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