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Update on EU developments Lee Digings National Advisor, Procurement

Update on EU developments Lee Digings National Advisor, Procurement. Outline of morning. Recent EU developments (legislation, cases, guidance) Refresher – Competitive dialogue Sustainable procurement Shared services Surgery - collaborative procurement General Q&A. Recent EU developments.

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Update on EU developments Lee Digings National Advisor, Procurement

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  1. Update on EU developments Lee DigingsNational Advisor, Procurement

  2. Outline of morning Recent EU developments (legislation, cases, guidance) Refresher – • Competitive dialogue • Sustainable procurement • Shared services Surgery - collaborative procurement General Q&A

  3. Recent EU developments

  4. Recent legislation Directives etc. Directive 2007/66/EC Remedies Regulation 213/2008 CPV code Public Contracts Regulations SI 2007 No 3542 Minor amendments SI 2008 No 2256 CPV code OGC consultation on implementation of Remedies Directive closes in October. Implementation deadline: December 2009.

  5. Latest EU guidance Institutionalised PPPs (joint ventures) C(2007) 6661 Pre-commercial procurement COM (2007) 799 (innovation) SEC (2007) 1668 FAQ on procurement of social services SEC(2007) 1514 SME procurement best practices SEC(2008) 2193 Green public procurement Forthcoming

  6. Latest government guidance OGC/DIUS Finding and procuring innovative solutions OGC/HMT Competitive dialogue 2008 OGC Buy green and make a difference OGC Buy and make a difference CO Joint statement on access to skills, trade unions and advice in government contracting Other OGC guidance on EU rules has been updated.

  7. New cases Contract award criteria Lianakis v Dimos Alexandroupolis, Case C-532/06, 24 April2008 Lettings International Ltd v Newham LBC, [2008] All ER (D) 76 (Jul) Aquatron Marine v Strathclyde Fire Brigade, [2007] CSOH 185 Variation clauses R. (Law Society) v Legal Services Commission [2007] WCA Civ 1264

  8. New cases Sustainable procurement - fair wage clauses Dirk Rüffert v Land Niedersachsen, Case C-346/06, 3 April 2008 Shared services - Teckal exemption Risk Management Partners v Brent LBC [2008] All ER (D) 226 (May) (“LAML”)

  9. Competitive dialogue

  10. Definition The competitive dialogue procedure is - “a procedure …whereby a contracting authority conducts a dialogue with the economic operators admitted to that procedure with the aim of developing one or more suitable alternative solutions capable of meeting its requirements and on the basis of which the economic operators chosen by the contracting authority are invited to tender.”

  11. Grounds for use The competitive dialogue procedure may be used – “Where a contracting authority wishes to award a particularly complex contract and considers that the use of the open or restricted procedure will not allow the award of that contract.”

  12. Grounds for use 2 A “particularly complex contract” is one where the contracting authority is not objectively able to - • define the technical means… capable of satisfying its needs or objectives, or • specify either the legal or financial make-up of a project or both.

  13. Procedure 1 Publish OJEU notice (award criteria in notice or descriptive document) Select bidders (minimum of three) Conduct dialogue with bidders to identify and define best meansto satisfy needs • Notes: • Maintain commercial confidentiality (bidders must agree before ideas can be shared) and equal treatment • Dialogue may take place in stages (refer to this in OJEU notice or descriptive document) reducing the number of bidders but remaining number must be “sufficient for genuine competition” (where feasible).

  14. Procedure 2 Invite final tenders (BAFOs) on basis of identified solution(s) Clarify final tenders where necessaryand evaluate against published criteria (choose the preferred bidder) Where necessary, clarify preferred bidder’s tender and confirm commitments before awarding contract • Notes: • Clarification must not change basic features of the tender in a way that is likely to distort competition or have a discriminatory effect. • 10 calendar day mandatory standstill period must be observed before entering into contract.

  15. Sustainable procurement

  16. When to consider • Pre-procurement (including demand management) • Specification • Selection • Contract award • Contract conditions • Relationship management Most scope to take social and environmental issues into account at the earlier stages of the procurement cycle: identifying need, establishing the business case and defining the specification.

  17. Shared services

  18. Shared services If you are setting up shared services with another public body you need a legal strategy because - • Public-public contracts in general are covered (ARGE C-94/99, Spain C-84/03). • Part B services contracts are not subject to full OJEU requirements but are covered by general principles (e.g. transparency). • “In-house” contracts with companies meeting specific criteria may be excluded (Teckal C-107/98, Halle C-26/03, Coname C-231/03, Parking Brixen C-458/03, Austria C-29/04, Tragsa) C-295/05). • Purely administrative law arrangementsare excluded – joint committees, delegation, administrative reorganisation etc. (Hinte IP/05/949)* * Case closed by the European Commission

  19. Teckal “in-house” criteria • Control similar to control over own departments • Carrying out essential part of activities with the authority or authorities

  20. Surgery – collaborative procurement General Q&A

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