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Commercial

Onerous practices in Public Procurement – new CCS Guidance
Wednesday 21st December 2016

The Crown Commercial Service has released its latest procurement policy note (PPN 10/16). The newly published guidance marks an attempt to reduce the number of public procurements (a.k.a. OJEU tenders or OJEU procurements) which involve onerous or inappropriate risk allocation between contracting authorities and suppliers. 

PPN 10/16 comes into force with immediate effect and applies to all central government departments, their executive agencies, and non-departmental public bodies.

The PPN reiterates the importance of contracting authorities conducting public procurement and contracting activity in accordance with published guidance and best practice. In particular, it highlights the following:

1. Pre-procurement market engagement between contracting authorities and potential suppliers, as permitted by provisions included in the Public Contracts Regulations 2015, is described as ‘essential good practice’. It is envisaged that such engagement will encourage innovation and maximise value for money.

2. Contracting authorities should ensure that accurate and reliable data is made available throughout the procurement process, especially when such data relates to forecasting volumes, and managing demand and performance under the contract.

3. Contracts should be awarded based on the supplier’s ability to provide value for money over the life of the contract.

4. Proportionate mechanisms should be employed to identify and address risks inherent in the contract and contracting authorities are encouraged to discuss these risks and possible solutions with suppliers at the pre-procurement stage.

5. When establishing limits of liability in contracts, contracting authorities should use the guidance developed by the Crown Commercial Service to support their Model Services Contract and in particular, they should ensure that:

  • The commercial risks of each contract are considered in detail;
  • Risk management proposals are discussed with potential suppliers in the pre-procurement stage;
  • Bespoke liability provisions are drafted to reflect the requirements, value and complexity of the contract, avoiding unlimited liability except where required by law; and
  • Deeds of Guarantee and Performance Bonds are only used where the contract is at high risk of performance or supplier failure.
     

6. Contracting authorities should adopt a collaborative relationship with suppliers, using established contract management tools and techniques so that any changes in contract delivery are identified early enough to be able to be resolved without creating unmanageable risk for either party.

The release of PPN 10/16 highlights the concern of suppliers that their adoption of risk in performing public contracts is disproportionate to the risk adopted by the contracting authority. Following this guidance, contracting authorities, acting in accordance with best practice, will need to consider the level of risk each party to the contract is best placed to bear and to consider the cost consequences associated with such risks, even before issuing an OJEU notice.

 

For further information regarding risk allocation in public contracts, or public procurement law in general, please visit our public procurement page or contact Victoria Trigwell at 0151 600 3429 or email victoria.trigwell@brabners.com

 


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Statement of Intent on the Data Protection Bill
Wednesday 9th August 2017

The latest on the Data Protection Bill as the Statement of Intent is published 

The Government yesterday released its statement of intent in relation to the forthcoming Data Protection Bill. In his foreword to the statement Minister of State for Digital and Culture Matt Hancock said that “We already have the largest internet economy in the G20. This Bill will help maintain that position by giving consumers confidence that Britain’s data rules are fit for the digital age in which we live”. The Bill needs to be implemented by 25 May 2018 in accordance with the EU General Data Protection Regulation (“GDPR”) as discussed in our previous blog.

Under the Government’s plans individuals will be able to exert more control over their data by having “the right to be forgotten”. They can also ask social media companies to delete their personal data. How this will work in practice and what steps social media providers will take to comply with the Bill remains to be seen. The Bill aims to make it easier for individuals to withdraw their consent for use of personal data. It also provides for parents and guardians to give consent for their children’s (under 13) data to be used.

Organisations are now required to obtain explicit consent before sensitive personal data may be processed. The definition personal data will also be amended to contain IP addresses, internet cookies and DNA. The Bill retains close links with EU’s GDPR which applies to anyone handling European’s data anywhere in the world. This will allow UK and European businesses to exchange data easily despite Brexit.

The Bill will see the Information Commissioners Office gain more teeth, being furnished with powers to impose greater fines with a maximum of £17m or 4% of global turnover. The statement proposes a new criminal offence of intentionally or recklessly re-identifying individuals from anonymised data. A further office of amending records with the intention of withholding documents from data subject access request will also be added.

For more information or advice on data protection, the GDPR or how to best prepare for the new Data Protection Bill please contact a member of our Commercial Team.


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A Dental Lawyer’s Thoughts on the Need for an Expense Sharing Agreement or Partnership Agreement
Tuesday 1st August 2017

All too often when I am speaking to dentists I hear the words “We don’t need a formal expense sharing agreement because…”. This is of course followed by a myriad of reasons; they have worked together for many years and never encountered any disagreements, they are working with a spouse or family member, their practice isn’t very large, they can’t afford one, they don’t like dealing with lawyers. As a lawyer specialising in the dental sector it may seem obvious that I will tell those dentists that they would be best protected in getting one, but it seems prudent to explain why.

To those dentists who have been working together for many years without any formal agreement and have not encountered any problems. Firstly congratulations, on successfully maintaining your relationship and ensuring that the business is profitable. You are the exception rather than the rule if you have never encountered a dispute or underlying resentment for the business decisions of your partners or expense sharers. However, the very fact that you have worked together for many years may now be the very reason you need to start formalising your relationship. If you are considering retirement how will this affect your relationship? Will you both wish to retire and sell the business at the same time? What if one of you wishes to buy the other out, how will the price be ascertained? What if your retirement is blocked by a co-owner who doesn’t wish to work with an incoming partner?

To those dentists who are working with a spouse or family member; I firmly believe it is you that will benefit more than any other in formally documenting your business relationship. Disputes with colleagues can be fraught; disputes with colleagues with whom you also have a close personal relationship can tear families apart. A formal document detailing the nature of your business and working relationship will make it clear from the beginning where each of you stand, it can ensure that each of you pulls their weight and avoid the need for arguments in the future.

To the dentist who believes their business is not sufficiently large to justify a formally documented expense sharing or partnership agreement; most dental businesses are a significant asset to their owners. Whether you spend one day a week within the business or whether you work in that business full time it is likely that the business is a significant part of your life. It makes sense to ensure that small businesses can run smoothly, and if problems within a management of a business arise for these to be settled quickly and efficiently by reference to a pre-planned procedure as documented in a partnership agreement.

To the dentist who feels that they can’t afford to put a formal document in place; give us a call it might be less expensive than you think. It is also worth bearing in mind the potentially massive costs you could encounter should a dispute arise, or whether your partner starts to incur liabilities on your behalf for which you are held responsible.

To the dentist who doesn’t like lawyers; we aren’t monsters. The healthcare team at Brabners pride ourselves in being approachable, with a genuine understanding of the needs of our dental and other healthcare clients. We don’t try to baffle you with language and our pricing represents true value in terms of the benefits to yourself and your business.


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Bidders must comply with the exact requirements of a Public Procurement Process
Friday 12th May 2017

The recent case of Gfi PSF Sarl v European Commission is a reminder that bidders who fail to follow the exact requirements set out by a contracting authority in its invitation to tender will likely face immediate rejection of their bid. 

In 2015 the Publications Office of the EU published an invitation to tender for technical services for internet sites. The invitation to tender included several specifications about how the bid should be made. Unlike most procurements, the Publications Office required a physical tender submission (rather than electronic submission) and specified how this should be achieved. In ‘pass the parcel fashion’, each bidder was asked to place the technical and financial elements of their bid in two separate envelopes, place these envelopes in a third envelope and then put this one in to a fourth envelope. All envelopes had to be sealed. Gfi PSF Sarl (“Gfi”) duly bid but was subsequently informed by the Publications Office that its bid had been rejected without consideration because the bid envelope was open when received and therefore confidentiality could not be guaranteed. 

Gfi lodged an action with the General Court alleging that the Publications Office infringed the obligation to state reasons as per Article 111(4)(b) of Regulation 2015/1929 (the Financial Regulation). The Financial Regulation governed this particular procurement, however the requirement to state reasons is roughly analogous to the principles behind the requirements of standstill letters.

Gfi first contended that the Publications Office’s initial letter rejecting Gfi’s bid did not contain a sufficient statement of reasons. A statement of reasons should be appropriate to the issues, setting out clearly the reasoning followed so as to allow the person in receipt to understand the reasoning and to enable a court to exercise its power of review. In the Gfi case, the Court considered the Publications Office’s letter to be a sufficient statement of reasons and found Gfi’s letter of response to be evidence that they understood why their bid was rejected.

Gfi also argued that the Publications Office were wrong to reject Gfi’s bid. They produced a photograph of their bid envelope being passed to a courier in perfect condition. In addition, they asserted that a member of the Publications Office had signed for the tender upon receipt but had not noted on this document that the envelope was damaged or open, nor had this been raised with the courier.

The European Commission (acting for the Publications Office) disputed Gfi’s arguments and produced a note signed by a member of the Publications Office and the Courier indicating the fourth envelope was in fact open upon receipt, as well as producing reasons regarding why the signature relied on by Gfi existed. In addition, they provided a photograph of the open envelope. The photograph also showed that parts of the bid were loose and not in the separate internal envelopes as required.

The Court was not persuaded by Gfi’s arguments and found that the bid was damaged and open when received by the Publications Office.

Gfi separately argued that, as the other three envelopes within the outer one were unopened, the Publications Office was wrong to dismiss the bid. The Court disagreed and referred to the photograph produced by the Commission showing loose documents within the fourth envelope, again meaning that confidentiality could not be guaranteed.

The Court decided the Publications Office was correct to reject Gfi’s bid without examining it.

This case underlines the importance of following the tender process and ensuring the mandatory steps of the process are followed at all times, no matter how procedural or minor they may seem. To do otherwise is to run the risk of a carefully prepared tender not even being considered. For any queries regarding the evaluation process, or public procurement in general, please visit our procurement page or contact Michael Winder.


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Can third party organisations bring a challenge relating to a development when they are not bidders or potential bidders?
Wednesday 5th April 2017

In the recent case of Wylde v Waverley Borough Council 2017 EWHC 466, the claimants sought judicial review of a decision by the local authority to vary a development agreement.  The circumstances were on the face of it, apparently similar to those in the decision of R (on the application of Gottlieb) v Winchester City Council 2015 EWCH 231 (Admin) and yet the outcome was entirely different.

In the Waverley case, there were 5 claimants, who comprised of 2 councillors from the town council and 3 members of local civic societies. The local authority had entered into a conditional development agreement after a competitive process, which did not follow the procurement rules for a works concession contract. The local authority wanted to vary the development agreement due to the financial crisis in 2008. The local authority issued a voluntary ex ante transparency (VEAT) notice advertising its intention to vary the contract. There were no responses to the VEAT from any potential bidders and this was considered to be a significant factor by the court.

The claimants were not economic operators and had not bid for the original development. The court had to consider whether they had sufficient standing to bring a claim for judicial review. The judge applied the rationale from an earlier case and stated that the claimants could only make a claim for judicial review if they had “sufficient interest in the matter to which the application relates”. In order to show sufficiency of interest, as the claimants were not economic operators and had not bid for the contract, they had to show that if the varied contract for the development had been competitively tendered, it might have led to a different outcome that would have had a direct impact on the claimant.

The judge noted that the variation reflected a change in the ultimate value the land should achieve once developed and the revised value had been confirmed by the authority’s professional valuers as satisfying the authority’s best consideration duty under the Local Government Act 1972 as it reflected best value for the authority at the time. The judge therefore concluded that the claimants would have difficulty in showing that a further tendering exercise for the varied contract would have resulted in a different outcome, partly due to the lack of response to the VEAT notice. The judge also held that the variation did not have a direct impact on the claimants as they did not have the status of economic operators under the procurement regime and the outcome of the development would not have been changed by the variation. On this basis, the claimants did not have legal standing to bring a judicial review claim.

In reaching its decision, the judge considered earlier cases including Winchester (referred to above), in which a local councillor brought a claim against the local authority following various variations made in 2014 to a development agreement which it was claimed resulted in a contract which was materially different in character such as to demonstrate the intention of the parties to renegotiate the essential terms of the contract to make the scheme financially viable for the developer. The High Court applied the Pressetext test to see if the variations were materially different in character from the original contract and found that the variations to the development terms altered the economic balance in favour of the developer and, had those terms been available at the time of the competitive process, other economic operators would have bid for the opportunity.

Whilst on the face of it, the facts of each of these cases appear similar, there are significant differences between them. In the case of Winchester, the council had not tendered the original opportunity for the development or the proposed variation and the variations did materially alter the nature of the development agreement. The judge noted that the failure to tender the original opportunity was a breach of the procurement rules but not one that could be remedied at the time of the claim. Also, the council did not argue the issue of whether the claimant had standing to bring the claim and the judge accepted that as a resident, a council tax payer and a city councillor, the claimant had a legitimate interest in ensuring public funds were spent wisely and secured the most appropriate development for the city through open competition.

In Waverley, the original development had been competitively tendered and it was considered that the variations to it would not have resulted in a different outcome for the claimant. Waverley highlights the use of a VEAT notice as an important tool in ensuring any challenges are brought quickly before the authority and the developer enter into binding obligations. However, the decision appears to make it more difficult to bring a challenge against a procurement by way of judicial review as it requires the claimant to show a link between the decision and how it affects them.


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Public Procurement – One hundred million reasons to get it right first time
Wednesday 5th April 2017

In our last blog we discussed the then ongoing case of Energysolutions EU Limited v the Nuclear Decommissioning Authority. This case was a textbook example of how not to evaluate a public procurement process. The Nuclear Decommissioning Authority (NDA) had followed poor practice and had been found to have manipulated its evaluation process to award the contract to a bidder who should have been disqualified for not satisfying one of the NDA’s own mandatory tender requirements.

The NDA has now admitted its procurement process was defective and has settled the Energysolutions claim in the sum of £76.6m, plus £8.5m in legal costs. A second claimant, and unsuccessful bidder, Bechtel, will receive a reported sum of £12.5m. By failing to conduct a fair, transparent and, above all, compliant public procurement process, the NDA is now facing costs of nearly £100m and will need to undertake a new time-consuming and costly procurement procedure to re-let the contract. If both cases had proceeded to trial, both the potential damages and costs the NDA would have faced could have been significantly higher than the settlement sums. 

Such was the size and cost of the failure that it made it into national news. Greg Clark, Business, Energy and Industrial Strategy Secretary, also announced an independent public inquiry to look at what went wrong with the procurement process: “This was a defective procurement, with significant financial consequences, and I am determined that the reasons for it should be exposed and understood; that those responsible should properly be held to account; and that it should never happen again.”

The NDA has merely acknowledged that it underestimated the scale of the decommissioning required and, as such, the procurement process was flawed.  

The NDA has announced that it will terminate the contract awarded to the successful bidder for the decommissioning work, Cavendish Flour Partnership. The contract will now end prematurely in 2019 instead of 2028. The cost of the re-procurement exercise is, as yet, unknown, however given that the first exercise was undertaken by a competitive dialogue, it is likely the re-procurement will be costly in terms of time and labour.

This case continues to prove a cautionary example of how not to evaluate a public procurement process. Had the NDA followed the correct procedure at the outset, it would not have had to settle these claims or be facing a costly reprocurement exercise. Prevention, or ‘getting it right first time’, would have been a great deal less expensive than the cost of paying damages, legal costs and reprocuring.

For any queries regarding the evaluation process, or public procurement in general, please visit our procurement page or contact Michael Winder.


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UK manufacturers have their say on Brexit ‘deal’ or ‘no deal’
Tuesday 28th March 2017

As the prime minister prepares to trigger Article 50 on Wednesday 29 March, the EEF, the trade body for manufacturers, has hit back at Theresa May’s claim in January that no deal would be better than a bad deal by claiming that such a result would be “unacceptable” and would be a “lose-lose” outcome for all parties both the UK and the EU.

Britain’s manufacturing industry directly employs 2.7 million people and accounts for 45% of all exports. At the moment, the EU is UK manufacturing’s biggest trading partner and if negotiations do not result in an agreement then businesses could face World Trade Organisation (“WTO”) tariffs, which range from 5% to 10%, for imports and exports from and to the continent.

However, according to Sir James Dyson the tariffs imposed by the WTO on his business have not prevented his company from achieving record financial results, which pays them on products that are manufactured in Singapore and imported into Europe. He went on to say that the tariffs were a “tiny penalty to pay” for trading with Europe but also said that he did not expect this scenario to arise because it would not be in Europe’s interests.

The point has also been addressed by David Davis, Secretary of State for Exiting the European Union, who said that the government had spent nine months since the Brexit vote preparing a plan. He went onto say that whilst coming away from negotiations was not a scenario that the government wanted or expected to see, there is a huge contingency plan in place which encompasses every department of government. It is not clear on what basis these contingency plans have been formulated as he has previously admitted that the Government had done no economic assessment of leaving the EU with no deal.

So it would seem that uncertainty continues to pervade the Brexit process. It is to be hoped that as the negotiations get underway over the coming months the path ahead becomes clearer and some of the uncertainty is removed.

 


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“Please Please Me, Sony” – McCartney and Sony tussle over copyright ownership
Wednesday 1st February 2017

Paul McCartney has filed for declaratory judgment against Sony/ATV Music Publishing LLC (Sony) in an ongoing dispute regarding his historic works. The Beatles star, who was outbid by Michael Jackson for the rights to a back catalogue of some 260 Beatles songs in the 1980s, is seeking confirmation in US courts that he is entitled to Get Back his historic copyright next year.

McCartney’s application to the Manhattan court states: ‘Section 304(c) of the 1976 Copyright Act gives authors like Paul McCartney who, before January 1, 1978, assigned or otherwise transferred their copyright interests to third parties, the non-waivable right to terminate those transfers and reclaim their copyright interests.’ Under s.304(c), original copyright owners may reclaim their right by serving a termination notice between 56 and 61 years following registration of copyright.

McCartney has served numerous termination notices between 2008 and 2015. These notices refer to some of McCartney and John Lennon’s biggest hits, including A Hard Day’s Night, Let it Be and Hey Jude.  McCartney is not yet attempting to reclaim his right to these songs, but is due to take control of the songs in 2018. He is seeking a court declaration that his attempted reclamation of the copyright in the songs currently owned by Sony will not breach a publishing agreement.

The complaint follows an English decision in the High Court to deny Duran Duran the right to reclaim their copyright under the same 1976 Copyright Act in December 2016. The group attempted to claw-back US copyright in a number of tracks, having granted a UK publisher (which was ultimately controlled by Sony) the US copyright in a number of hit albums recorded by the band.

Ultimately, Duran Duran became a Band on the Run after the application of English contract law prevailed in the High Court, and their claw-back failed. Representatives for Sony allegedly informed McCartney that the Duran Duran case would influence Sony’s position, and it is anticipated that the Duran Duran case will be used to challenge McCartney’s claw-back attempt.

It is, however, likely that McCartney will obtain a favourable declaratory judgment. UK law permits the ownership of copyright for a period of 70 years following the artist’s death, without the same claw-back rights enjoyed by US artists under the 1976 Copyright Act. So although Duran Duran may have to Live and Let Die before their copyright is freed from contract, McCartney can rely on a quirk of US copyright law to reclaim his rights.

The Beatles, as with most emerging artists in early 1960s Britain, lacked adequate legal representation. A hunger for fame can cause talent to sign contracts which they later regret. George Michael and Rita Ora provide more recent examples of artists who entered into regrettable contracts. In the Beatles’ case, it can be assumed that the group didn’t understand or appreciate the long-term ramifications of the deal they were offered.

Recent conflicts between Duran Duran and Paul McCartney with their respective copyright holders have thrown up important considerations for artists and publishers in the US and UK. Artists should ensure that they enlist legal representatives before signing any far-reaching, or potentially controversial, commercial deals. Alternately, publishers will be keen to restrict the jurisdictional scope of their agreements to prevent unforeseen attempts by artists to escape contracts.

Artists should be aware that the contracts they are offered must be reviewed by independent, legally trained professionals who will Say Say Say if a commercially burdensome provision appears, and negotiate a legally sensible alternative. It is only then that artists and their publishers should Come Together and enter into contract.
 


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CJEU denies ‘definitively excluded’ bidder the right to challenge unfavourable award decision
Wednesday 1st February 2017

Under public procurement law, member states must ensure that economic operators, who have an interest in obtaining a public contract and who are at risk of harm by an alleged infringement, are afforded sufficient time for an effective review of the award decision.

A 10 day standstill period, during which the contract cannot be concluded, follows the decision to award a public contract. Concerned tenderers - those which have not been ‘definitively excluded’ - must be notified of the decision to award, and may challenge the decision during this period.

A tenderer is deemed to have been definitively excluded if it has been notified of the decision to exclude it, and this decision has been found to be lawful by an independent review body, or the review procedure is no longer available.

In a recent case, Bietergemeinschaft Technische Gebäudebetreuung GesmbH und Caverion Österreich GmbH v Universität für Bodenkultur Wien and others (Case C355/15), the tenderer had been excluded from the procurement procedure by a final decision of the contracting authority, which had been confirmed twice on appeal. It was therefore important to decide whether the tenderer had the right to challenge the award decision, as it was not technically a ‘concerned tenderer’, but did still have an interest in obtaining the contract.

The dispute arose after an Austrian university issued a call for tenders using the negotiated procedure. A consortium and another party submitted tenders before the deadline. The consortium later failed to submit an original of a bank guarantee in good time and was definitively excluded from the tendering procedure. The contract was awarded to the other party, which began to perform the services.

The consortium appealed the decision to exclude it from the process. The appeal was dismissed. It also appealed the award decision, claiming that calculations made by the other party were materially incorrect. It was held at appeal that the definitive exclusion of the consortium from the process removed its right to challenge the award decision, as 'the rights of a tenderer whose bid has been properly excluded cannot be infringed by illegalities relating to the procedure'.

The Austrian Administrative Court referred the issue to the Court of Justice of the European Union (CJEU), seeking guidance on whether a tenderer which has been definitively excluded from the procurement process, and in turn which has lost its status as a concerned tenderer, may be refused access to the review procedures of the award decision.

The CJEU held that current legislation provides for effective review of the procurement process. It allows excluded tenderers the chance to challenge the exclusion decision and, so long as that challenge has not been resolved, to challenge the award decision should the exclusion be annulled.

In this instance, the consortium’s appeal against the award decision was heard after the decision was made to definitively exclude it from the procurement process. For this reason, the review procedure was no longer available. The decision to exclude the consortium extinguished its status as a concerned tenderer.

This decision has been criticised for creating uncertainty in the appeal process. Whilst a tenderer has the right to challenge its exclusion from a tender process and a separate right to challenge the award decision, if as in this case, the decision regarding the tenderer’s exclusion is determined first, this extinguishes its right to challenge the award decision.


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Showing Your Hand in Public Procurement: Disclosing Evaluation Methods
Monday 23rd January 2017

At the end of last year, the European Court of Justice (ECJ) provided guidance on the responsibility of contracting authorities to disclose elements of their procurement process when evaluating tenders.

The question the ECJ reviewed was: Is a contracting authority always required to inform potential tenderers of the method of evaluation used when evaluating a public procurement contract? Such a question is of interest to tenderers as it is the method of evaluation of tenders which could be the difference between success and failure in an OJEU procurement.

The ECJ confirmed the position that contracting authorities must disclose the award criteria, sub-criteria and weightings in their contract notice and tender documents. This allows tenderers to ensure that they prepare a competitive tender.

The ECJ concluded contracting authorities were not required to disclose the method of evaluation used to evaluate tenders. That said, the ECJ also noted that the method of evaluation must not have the effect of:

a) changing the award criteria; or
b) altering the weighting of the criteria.

The ECJ reiterated the guiding principles regarding award and evaluation:

1. Award criteria weightings must be specified;
2. The relative weightings cannot be changed throughout the procurement procedure, but must be clearly defined from the beginning of the procedure, thus enabling tenderers to establish objectively the actual importance given to an award criterion relative to another by the contracting authority;
3. Weightings may be expressed by providing a range;
4. Any weighting range must have an appropriate maximum spread;
5. A demonstrable reason must be given if weighting is not possible;
6. If weighting is not possible, criteria are to be arranged in descending order of importance;
7. All tenderers are to be reasonably informed of the criteria and arrangements employed to identify the most economically advantageous tender;
8. Economic operators are to be treated in an equal and non-discriminatory way;
9. The contracting authority must act transparently and equally towards tenderers;
10. From the outset there must be a clear definition of the subject matter of the contract and the criteria governing the award;
11. A contracting authority cannot apply previously undisclosed sub-criteria;
12. A contracting authority must interpret the award criteria in the same way throughout the procedure; and
13. A contracting authority may not apply weighting rules which it has not previously brought to the attention of tenderers.

The ECJ goes some way to avoid imposing an unreasonable burden on, and ensures that a degree of privacy remains in the decision making process of, contracting authorities. Tenderers can also rest assured that a restriction on the use of evaluation methods means contracting authorities cannot unscrupulously use them to subvert their award criteria.

Critics may suggest that the case is a backwards step in the adoption of a completely transparent and fair procurement process; however the sensible use by contracting authorities of award criteria, in line with the guiding principles, will ensure the continued fair and impartial award of public contracts.


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