Professor Sue Arrowsmith Achilles Professor of Public Procurement Law and Policy University of Nottingham

Transcription

1 Professor Sue Arrowsmith Achilles Professor of Public Procurement Law and Policy University of Nottingham

2 Outline 1. Requirement to formulate and disclose the award criteria and methodology for award 2. What criteria are permitted: Social and environmental criteria Past experience etc (overlap between selection and award) Requirement for verification

3 Introduction Art.67(1) Must base the award on most economically advantageous tender (MEAT) Change of terminology only MEAT can be decided on basis of lowest price

4 1. Formulation and disclosure Must formulate and disclose award criteria, which must not give unrestricted freedom of choice (Art.67(4)) Allows monitoring of choice made Allows tenderers to know what is wanted

5 1. Formulation and disclosure Cannot be less specific than the illustrative list in the Directive (technical merit, aesthetic characteristics etc) Beentjes most acceptable tender cannot be an award criterion

6 1. Formulation and disclosure Must be specific (Concordia Buses) more specific than the illustrative list? Dutch coffee Technical merit X (need to be specified more precisely and/or broken into sub-criteria)

7 1. Formulation and disclosure Must be quantifiable i.e. measurable without subjective judgement, where possible (Concordia) E.g. ergonomics of vehicle But not always possible e.g. aesthetic merits

8 1. Formulation and disclosure Subjective judgement can be involved in ascribing a value E.g. value of less noisy buses

9 1. Formulation and disclosure Must disclose the award criteria and (usually) weightings (Art.67(5)) Must be in procurement documents available at start of the award procedure

10 1. Formulation and disclosure Must disclose all sub-criteria used No condition that could have affected preparation of tenders? Must disclose any weightings for the sub-criteria when they could have affected preparation of tenders Advisable to disclose in all cases

11 1. Formulation and disclosure Can the disclosed criteria/sub-criteria and weightings etc be changed? No? Literal reading of some cases e.g. EVN Yes if certain conditions met? Not material Change notified in good time for tendering

12 1. Formulation and disclosure Competitive procedure with negotiation and innovation partnership: changes to award criteria shall not be subject to negotiations : Consistent with either general answer? Prevents changes after information on offers available to the CA Allows some change e.g. before the award phase; and for unforeseeable events? Cf. recital 45 says no change throughout the procedure to ensure equal treatment Does the same rule apply to competitive dialogue?

13 1. Formulation and disclosure Must method for applying the above be disclosed? E.g. how weightings are to be applied; formula for sensitivity analysis

14 1. Formulation and disclosure Case C-6/15 TMS Dimarso (14 July 2016) Contract for housing survey under Directive 2004/18 Disclosed: PRICE 50% QUALITY 50%

15 1. Formulation and disclosure Application not disclosed: QUALITY 50% PRICE 50% High Satisfactory Low

16 1. Formulation and disclosure Dimarso: it is NOT necessary to disclose: the method of evaluation applied by the contracting authority in order to effectively evaluate and assess the tenders in the light of the award criteria of the contract and of their relative weighting (para.27)

17 1. Formulation and disclosure However, is this true in all cases? Or must such material be disclosed (as an exception) when it could have affected tenders i.e. is treated the same as weightings of sub-criteria? Latter was view of AG Mengozzi para.47 of the Opinion Also view of Commission in letter to Danish Government March 2016 Must disclose e.g. conversion of price into points Is the better view

18 1. Formulation and disclosure Dimarso: Applying the method chosen for quality without disclosing it possibly unlawful in that case as could have effect of changing the disclosed weighting, by reducing the importance of quality against price See paras of judgment and paras of Opinion of AG Mengozzi Was for national court to decide whether did have the effect of changing weightings

19 1. Formulation and disclosure Is use of a scale permitted in principle Dimarso: yes, provided that it does not alter the disclosed rules (para.36) If disclosed, would it be acceptable (as the way in which the 50% is to be applied is clear and so not altered by the method of application)? Yes (my view) Or can it be argued that the 50% weighting and stated method are inconsistent with each other?

20 1. Formulation and disclosure Dimarso: method cannot be established after opening of tenders i.e. applies a rule already established regarding setting sub-criteria and their weightings Note: relevant anyway if/only when disclosure of method not required Dimarso: however, exception where not possible to establish method before tendering for demonstrable reasons Will rarely apply? Is this an exception to any disclosure rule?

21 2. What criteria are permitted? Must be linked to the subject matter of the contract: Art.67(2) EVN/Wiendstrom case E.g. not allowed consideration of whether have ethical investment policy price preference for SMEs or undertakings owned by disadvantaged groups

22 2. What criteria are permitted? Why? (Original objective) To limit potential for choosing conditions to favour particular undertakings To limit criteria that can significantly restrict access to contracts Not to control balance between commercial and social/environmental considerations

23 2. Permitted criteria: social and environmental Art.67(3) Award criteria are linked to the subject matter: where they relate to the works, supplies or services to be provided under that contract in any respect and at any stage of their life cycle, including factors involved in: (a) the specific process of production, provision or trading of those works, supplies or services; or (b) a specific process for another stage of their life cycle, even where such factors do not form part of their material substance

24 2. Permitted criteria: social and environmental Art.2(1)(20) Life-cycle refers to: all consecutive and/or interlinked stages, including research and development to be carried out, production, trading and its conditions, transport, use and maintenance, throughout the existence of the product or the works or the provision of the service, from raw material acquisition or generation of resources to disposal, clearance and end of service or utilisation

25 2. Permitted criteria: social and environmental Scope of permitted award criteria is same as scope of permitted contract terms (specifications or special conditions )

26 2. Permitted criteria: social and environmental Includes: Environmental impact of product or service when used E.g. Concordia Buses Environmental impact of producing product or service, including pollution in extraction or manufacturing (recitals 96-97) Environmental impact of disposal

27 2. Permitted criteria: social and environmental Includes: Fair trade considerations relating to production (fair price, pre-financing of production and long term relationships) Dutch Coffee case Workforce criteria e.g. provision of jobs or training in relation to work on the contract for long-term unemployed or disadvantaged persons (recital 99) Pre-2014 rejected by Commission in its interpretation of Nord pas de Calais case

28 2. Permitted criteria: social and environmental Are criteria relating to office administration, management etc of a company? factory? sufficiently linked to the subject matter? Recital 97: excludes criteria relating to general corporate policy, which cannot be considered as a factor characterising the specific process of production or provision of the purchased works, supplies or services (emphasis added)

29 2. Permitted criteria: social and environmental Wide discretion in weighting criteria: EVN/Wiendstrom 45% production of renewable energy/55% price Case C 601/13 Ambisig wide discretion that increased in 2004 directives

30 2. Permitted criteria: social and environmental Life cycle costing refers to where take into account all or part of costs over life cycle to CA or others (Art.68(1)) Was possible before 2004 and concept has little legal significance in the 2014 directive Commission s original proposal regulated more extensively

31 2. Permitted criteria: social and environmental Mandatory methods established in EU legislation must be used where available (see Annex XIII)

32 2. Permitted criteria: social and environmental Is there a presumption that general methods that exist should be used not ad hoc methods for specific procurements? Recital 96

33 2. Permitted criteria: social and environmental CAs must accept equivalent methodologies proposed by economic operators for their own tenders? Not included in final version of directive but derives from general principles?

34 2. Permitted criteria: social and environmental If assess costs of environmental externalities must follow approach in Art.68 (Art.67) Must use method which is based on objectively verifiable criteria Must be non-discriminatory Where is not established for repeated and continuous application it must not unduly favour or advantage certain firms Must be accessible to all interested parties Data must be able to be provided by normally diligent firms with reasonable efforts

35 2. Permitted criteria: social and environmental Can experience of staff/tenderer, and other criteria used to choose who will be invited to tender (e.g. financial and technical), also be used at the award stage?

36 2. Permitted criteria: social and environmental Lianakis cast doubt on whether possible even though: The case did not say that It is illogical not to allow it It can enhance value of money Other systems allow it e.g. UNCITRAL

37 2. Permitted criteria: experience etc 2014 Directive: award criteria may include the organisation, experience or qualifications of staff performing the contract when the quality of staff can significantly impact the level of performance (Art.67(2)) Rejects the view that matters relating to staff of tenderer cannot be award criteria Clarifies that to do so must be linked to performance Case C-601/13 Ambisig confirmed that both are the case also under the 2004 directive

38 2. Permitted criteria: experience etc Can the experience etc of firm itself be considered (or just the experience etc of staff)? No? ECJ in Ambisig says Lianakis concerned general experience of tenderer not staff But see Opinion of Advocate General Wathelet of 18 December 2015, para.78 of the Opinion, endorsing a statement of Arrowsmith that Lianakis does not preclude considering either the abilities of the tenderer or the qualities of the individuals or team that will be working on the contract, to the extent that these are actually relevant to the quality of the work that will be done.

39 2. Permitted criteria: experience etc Recitals suggest that where consider experience etc of staff should ensure by contract: That the staff effectively fulfil the specified quality standards That such staff may only be replaced with the consent of the contracting authority which verifies that the replacement affords an equivalent level of quality

40 2. Permitted criteria: experience etc Reflects general rule in PCD Art.67(4) (codification of EVN): [Award criteria] shall be accompanied by specifications that allow the information provided by the tenderers to be effectively verified in order to assess how well the tenders meet the award criteria. In case of doubt, contracting authorities shall verify effectively the accuracy of the information and proof provided by the tenderers.

41 2. Permitted criteria: experience etc What does this require? Must include content of tender - e.g. use of named staff or equivalents, or staff with certain qualifications - in contractual terms Must make contractual provision for verification e.g. on information to be provided by tenderers by way of proof Must consider whether to verify in practice However, is wide discretion on when to do so, taking account of doubt, risk etc interpretation of EVN in UK case law

42 2. Permitted criteria: experience etc Departure of named staff could amount to material change requiring a new tendering procedure under Art.72 Cf Wall case on subcontractors Will not be material change if can provide an equivalent; recitals suggest procedure that allows for substitute and for authority to verify whether equivalent Need a review clause to cover key staff where no equivalents?

43 2. Permitted criteria: experience etc Annex XII (listing the evidence that may be required to prove technical/professional capability): educational and professional qualifications of the service provider or contractor or those of the undertaking s managerial staff, provided that they are not evaluated as an award criterion (emphasis added)