Precision in analysis and advice For the seminar, Bold Procurement , 15 June 2012

1. Precision in analysis and adviceFor the seminar, Bold Procurement , 15 June 2012 Alan Bates Barrister abates@monckton.com

2. Bold, not reckless • Procurement law highly precise • Close relationship with State aid rules – though the rules (e.g. Teckal are not identical) • Scope for legislative change or helpful guidance from the European Commission is limited –principles developed in the case-law of the ECJ • Maintain a level playing field for EU/EEA trade – Social value not a cloak for discrimination and advantaging local/ national producers

3. Restructuring services – Planning the bite point • Need to consider the Teckal test very carefully and having regard to likely developments in the case-law • Teckal decides the point at which a procurement takes place • Consider: ownership; control; activities • Ill-informed choices of certain models of ownership/control can cause problems • State aid also potentially relevant

4. Restructuring services – State aid considerations • Possible advantages to the new entity in competition with other economic actors • Loans • Contract awards • Transfers of assets / equipment • Transfers of expertise • Transfer pricing and transparency

5. Social procurement – Non-discrimination • This is absolutely key – Criteria must be non-discriminatory • Not requiring employment of only local workers, young people, etc • Possible solutions: • Common technical standards • Smaller contracts • Non-model/method-specific legitimate social value objectives (eg for employee/community involvement)

6. Dual objective procurement • Does the purchasing authority have more than one statutory or other object that it is seeking to meet? • Can a model be designed whereby the social value is part of what is being procured, rather than merely the way that what is being procured is being provided?

7. Governance and involvement structures • Do not have to be discriminatory on nationality or against certain models of provider • Legitimate to specific community consultation / involvement • Need to be cautious about information sharing and State aid (‘imputable to the State’)

8. Stop disadvantaging social and small providers • Avoid PQQs and unnecessary qualification criteria • Avoid unnecessary complexity and service-irrelevant criteria (e.g. diversity and environmental standards) assessed on a ‘tick-box’ approach • Use criteria which reflect genuine local needs and give credit for social value and innovation

9. Take-away points • Front-loading • Forward planning • Precise technical consideration and advice • Possibility of establishing local forum for pre-tender news and discussions to inform the development of appropriate selection criteria – This can be done in a lawful way

10. Thank you For more information www.monckton.com abates@monckton.com