Public Procurement: rules and realities

1. Public Procurement: rules and realities David Gollancz Barrister Keating Chambers dgollancz@keatingchambers.com Day 2 24 October 2013 11.30 Kingfisher

2. Commercial wisdom So, why are capture strategies so important? The majority of industry veterans agree that customer buying decisions are 40-80% decided before proposals are submitted. 

3. EU Reaction

4. The single market

5. Statute NHS (Procurement, Patient Choice and Competition) Regulations 2013

6. Case law • European level: • Court of Justice of the European Union (formerly Court of Justice of the European Communities, “ECJ”) • General Court (formerly Court of First Instance, “CFI”) • European Ombudsman

7. Case law • UK Courts • Republic of Ireland • Other member states • US and Canada

8. Guidance • EC “soft law”: • Explanatory notes • Interpretative communications (but judicial approval may elevate) • UK guidance: • OGC (defunct but guidance still applies unless overruled) • Cabinet Office ERG

9. Chocolate mayonnaise cake Ingredients For the cake: 275g self raising flour 225g caster sugar 1½ teaspoons baking powder 200g mayonnaise (I make my own using sunflower oil but you can use commercial) 4 tablespoons cocoa powder 225ml boiling water 1 teaspoon vanilla essence For the icing: 2 level teaspoons instant coffee (Starbucks) or sub 2 tbs espresso for hot water 2 level tablespoons cocoa powder 2 tablespoons warm water 75g butter 225g icing sugar Instructions Preheat the oven to 180°C (350°F) mark 4. Line an 18 cm cake tin with greaseproof paper. Sift the flour into a large mixing bowl and stir in the caster sugar and baking powder. Beat the mayonnaise well into the flour – it is very important to beat thoroughly into the dry ingredients. Dissolve the cocoa in the boiling water and stir this gently until it’s smooth. Add to the flour mixture with the vanilla essence and give it a quick stir. Stir everything thoroughly until all the ingredients are blended but this time don’t beat the mixture because that will spoil it. Just keep stirring it gently until all the lumps are gone. Pour the cake mixture into the tin. Bake for about an hour or until the centre feels springy and a skewer comes out clean. Leave the cake in the tin to cool before turning out onto a wire rack. For the topping, dissolve 2 teaspoons of coffee and 2 tablespoons of cocoa in 2 tablespoons of hot water. Add the soft butter and the icing sugar. Beat the mixture thoroughly ensuring there are no lumps and spread it over the cake. Chocolate mayonnaise cake

10. TFEU Art. 18 Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.

11. Equal treatment • “Lies at the very heart of the Directive” • The contracting authority must not treat economic operators favourably or unfavourably by comparison with each other except on relevant, objective and proportionate grounds and by a transparent process

12. The Principles • The Directives: • Equal treatment • Non-discrimination • Transparency • The Treaty and case law: • Proportionality • Objectivity • Fairness • Rationality

13. Transparency • Contracting authority has broad (but not unfettered) discretion as to its criteria and procedure - but • Having chosen its criteria and procedure, contracting authority has no discretion to waive, alter or depart from them. • Criteria and procedure must be made available so that interested parties (including the court) can review them and assure themselves that they have been properly and impartially applied.

14. Transparency in pictures

16. Regulation 4(3) (3) A contracting authority shall (in accordance with Article 2 of the Public Sector Directive)— (a) treat economic operators equally and in a non-discriminatory way; and (b) act in a transparent way.

17. Perfect garlic mash • Estima* potatoes peeled and cut in quite large chunks • Sprinkle with EV olive oil, salt, and fine-cut garlic • Steam till tender but not too soft and definitely not collapsing • Put in mouli with fine screen, set over warm ceramic bowl (fireproof if you’re going to keep hot in oven), add generous dollop of best butter and some whole milk or a little cream • Pass through mouli • Voila! Parfait

18. Principal stages • Advertisement • Selection (“PQQ” or “PEQ”) • Rejection (Mandatory and discretionary Reg. 23) • Qualification (Minimum standards, Reg. 24 – 25) • Selection (Ranking – individual procedural regs, not in Open procedure)

19. Principal stages • Award • Lowest price • Most economically advantageous tender (Price/quality) • Notification • Outcome • Reasons

20. Overriding principle • The obligations of equal treatment, non-discrimination and transparency apply with full force throughout the process, and throughout any review of the process

21. Time limits for challenge • 30 days from date on which claimant knew or ought to have known of grounds • = knew or ought to have known facts which clearly indicate, although they need not necessarily conclusively prove, that there has been a breach • Rigorously enforced; provision for extension to 3 months “for a good reason” but no successful applications for extension so far

22. Public Procurement: rules and realities David Gollancz Barrister Keating Chambers dgollancz@keatingchambers.com Day 2 24 October 2013 11.30 Kingfisher