Framework agreements under Public Sector Directive 2004/18. Professor C.H. Bovis

Transcription

1 Framework agreements under Public Sector Directive 2004/18 Professor C.H. Bovis

2 Frameworks Used for products/works/services where repeat need but exact quantities unknown e.g. stationery, vehicle repair, roads maintenance Eliminate the need for repeating procedures for each order (administrative convenience) - but maintain competition and transparency?

3 Categories of framework Single-supplier frameworks E.g. to get price discount Multi-supplier frameworks E.g. because best supplier for each order is only known when the details of the order are known (e.g. consultancy projects which personnel available, project methodology etc) To distribute work more widely For security of supply

4 Categories of framework Single-user frameworks Public body lets for own use Multi-user frameworks e.g. awarded by purchasing consortium for all universities

5 Main types of framework Binds P to buy and S to supply Either to certain quantities or to any requirements if they arise (e.g. all stationery needed in the year) Binds S only E.g. where P thinks market may change Binds neither S nor P

6 When should frameworks be used and which type? Depends on purchaser s objectives, and on the market Law could regulate which type purchasers may use (but EU and UK law does not)

7 Which type applies to me? Check before you negotiate/sign up!

8 Contracts outside the framework If framework awarded under the directive does not bind P, and P decides not to use it, contracts awarded by P outside the framework must be awarded under the directive (if covered)

9 Frameworks: history Until 2004 no provisions on frameworks Were only found in Utilities Directive However, many states used them and considered them legal Late 1990s complaint to Commission Northern Ireland case Outcome: Generally accepted that some types were legal Decided to add provisions on this in a new directive to authorise/control/give legal certainty History explains some of the provisions

10 Frameworks: history More scrutiny/legal challenge? This has been UK experience

11 Relevant provisions Defined in Art. 1(5) Rules mainly in Art.32 Guidance: European Commission: Explanatory Note- Framework Agreements-Classic Directive, available at

12 Definition: Art.1(5) Framework agreement = an agreement between one or more contracting authorities and one or more economic operators, the purpose of which is to establish the terms governing contracts to be awarded during a given period, in particular with regard to price and, where appropriate, the quantity envisaged.

13 Award procedures for frameworks Contracting authorities use ordinary award procedures (usually open or restricted), adapted to rules on framework agreements

14 Single-supplier frameworks Contract notice (Selection: restricted procedures) Tenders Choose framework supplier, based on pre-disclosed award criteria Place orders

15 Multi-supplier frameworks Contract notice (Selection: restricted procedures) Tenders based on set terms and sample requirement Award part 1: Choose framework suppliers, based on award criteria Award part 2: Choose between framework suppliers for an order (call-off stage)

16 Which authorities can use a multi-user agreement? Those outside the description in the contract notice cannot use the agreement E.g. universities cannot use a framework advertised as being for local authorities

17 Which authorities can use a multi-user agreement? But how precisely must the notice identify the users? Commission: potential user group must be explicitly identified by name or reference e.g. municipal bodies of province x, where list exists; but not contracting authorities Users do not need to be signed up at the time of the notice or conclusion of the framework? Transparency principle; and Art.32(2) (procedures for order may be applied only between the authorities and economic operators party to the framework) - Commission thinks this merely means authorities must have right under administrative law to use the framework?

18 Which authorities can use a multi-user agreement? Addition of new authorities is constrained by requirement to state estimated value of agreement in the contract notice

19 Awarding contracts within the framework How should suppliers be chosen for each contract?

20 Awarding contracts within the framework Procedure 1: Choose the framework suppliers based on tenders Choose the supplier for each call-off based solely on original tenders no mini-tender/competition to place order Procedure 2: Seek tenders to choose framework suppliers; Hold additional mini-tender to place the call-off order

21 Example of procedure 1: office supplies Suppliers are invited to submit prices for 300 standard items, together with delivery rates to different parts of the country 6 suppliers are selected based on prices and delivery charges, taking into account likely geographic spread of orders Call offs: supplier for each order is selected by reference to the lowest cost (price plus delivery charge) for the specific order

22 Example of procedure 2: management consultancy Suppliers submit rates and details of expertise, based on several specimen briefs 3 suppliers are selected based on rates and expertise Call offs: A faxed brief is provided for each piece of work and firms indicate available consultants and proposals for addressing the project Supplier is then selected based on expertise of those available and quality of proposals, plus rates originally tendered

23 Procedure 1 and procedure 2 Q. Can be both be used in a single framework for the same product/services/works? A. Yes, if this possibility and the conditions for use of the procedures are referred to in the contract documents?

24 Criteria for call-offs Lowest price or MEAT no problem Others compatible with the Treaty less clear Rotation for security of supply Policy considerations such as spreading work to maintain competition

25 Methods that cannot be used to make call-offs By allowing continuous revisions to tenders, and choosing the best current offer without running a mini-tender under the regulations By free exercise of discretion without regard to any prestated award criteria

26 Use of key performance indicators in making the award Can be used as one piece of evidence, just like any other, to give overall assessment?

27 Award: disclosure obligations Where MEAT used, must state criteria in notice or documents and (usually) give weightings e.g. price 80%, quality 20% Where use formal sub-criteria, must state these sub-criteria, and any weightings adopted for the sub-criteria, in notice or tender documents, where might affect tenders Will apply also to call-offs by mini-competition (i.e. specify subcriteria and any weightings mini-competition documents) How does this affect call-offs without mini-competition? Must state sub-criteria and weightings in contract documents for the framework itself? Can use range of weightings to give flexibility e.g. for urgency

28 Award Q 1. Can criteria and/or weightings used for call-offs differ from those used to choose framework suppliers? Q 2. Can criteria and/or weightings used differ for different call-offs? 1. Presumption that the same? - equal treatment/ prohibition on abuse of frameworks 2. Scope for justified variation? e.g. urgency; importance of quality 2008 OGC guidance (UK) on mini-competitions: weightings can vary to reflect the particular requirement within pre-stated range 3. Can use sub-criteria (and these could differ?) - OGC (UK) on mini-competitions: can use new criteria that are related to (i.e. derive from) the original criteria - Remember to disclose formal sub-criteria in tender documents

29 Monitoring and enforcement Does the Remedies Directive (as amended) provide an adequate system? No adequate controls over call-offs Legal uncertainty (only partly resolved by the 2007 amendments) However, actual position depends much on national law

30 Temporal application of the amending Remedies Directive In UK new rules applied only to: Award of frameworks to award procedures begun after 20 December 2009 Call-offs to call-offs made under frameworks for which award procedures begun after 20 December 2009

31 Award notices (Art.35(1)) Notice required when framework set up No notice required for orders (call-offs) under framework Note with dynamic purchasing system notices of orders placed are required quarterly or for each order - a more logical approach?

32 Information on decisions (Article 41) Applies to conclusion of the framework Unclear how applies to call-offs: To all? To none? Only to those awarded after a minicompetition (procedure 2)?

33 Notification and standstill Apply to conclusion of the framework

34 Notification and standstill Call-offs based on original tenders: No obligations

35 Notification and standstill Call-offs based on mini-competition Below-threshold value: no obligations (change from Commission Proposal) Above-threshold value: 3 options (flexibility for Member States) 10-day standstill No standstill, but inform all framework suppliers of call-off and reasons: those suppliers then have 30 days to challenge it No standstill or notification but call-off will be ineffective if challenged within 6 months (subject to court discretion to save the contract for important public interest; plus contract can be saved in effect for past actions)

36 Notification and standstill UK approach to above-threshold call-offs by mini-tender: All 3 options available to contracting authorities themselves Authorities advised to consider urgency and degree of confidence in the legality of the calloff in deciding whether to apply a standstill

37 Do the remedies of the Remedies Directive apply to call-offs? In particular, do they apply to call-offs without a mini-competition (procedure 1)?

38 Dynamic purchasing system (Art.33) Is a variation of the open procedure 1.Contract notice 2.Firms submit indicative tenders 3.All qualified firms submitting compliant tenders must be admitted to system 4.Firms can change tenders at any time

39 Dynamic purchasing system (Art.33) 5. Entity wishing to place an order must a. Place notice in OJ ( simplified contract notice ) b. Allow 15 days for new indicative tenders and register on system new qualified firms who submit compliant tenders c. Invite all firms on the system to submit a final tender for the order d. Award to the best tenderer e. Tell other tenderers and respect a standstill period? f. Conclude a contract for the order

40 Dynamic purchasing system (Art.33) Has the advantage over a framework that new suppliers can be added after setting up the system However, ordering procedure is cumbersome