LAW AS A DRIVER FOR INTEGRITY AND DEVELOPMENT IN GOVERNMENT PROCUREMENT

Transcription

1 LAW AS A DRIVER FOR INTEGRITY AND DEVELOPMENT IN GOVERNMENT PROCUREMENT A PERSPECTIVE FROM NORTHERN IRELAND MICHAEL HUMPHREYS QC 24 FEBRUARY 2015

2 THE HISTORICAL CONTEXT In February 2012, following a 10 year investigation, four Defendants pleaded guilty at Belfast Crown Court to offences of corruption and bribery arising out of the tendering processes for the award of MOD contracts for the provision of CCTV throughout Northern Ireland The Defendants included a well known local businessman and senior officials within the MOD. The businessman had been successful in obtaining 16.2M in contracts whilst paying bribes to officials

3 THE HISTORICAL CONTEXT McLaughlin J, in sentencing, pointed out that for many years government contracts had been very dangerous. Individuals had been killed, injured and intimidated for carrying out such works. This Defendant had himself been shot in He commented: The environment in which these contracts were carried out has changed vastly in recent years. This is due to a combination of the implementation of the EU Procurement Directives, European and national competition laws and other national legislation. The system which prevailed in Northern Ireland during the relevant years was a product of our own special circumstances which have greatly altered in the intervening years due to the Good Friday Agreement and subsequent political developments

4 THE EMERGENCE FROM CONFLICT Northern Irish society has moved into an era of relative normality. However, the legacy of the Troubles has been an economy which is heavily dependent upon the public sector and on subvention from GB It also faces problems of social inequality, unemployment, deprivation and discrimination

5 THE ROLE OF PUBLIC PROCUREMENT REGULATION In light of this background, this short talk will seek to address two questions: What contribution have the laws regulating the award of public contracts made to Northern Ireland s economy and society? What more can be achieved in the future?

6 THE DEVELOPMENT OF PROCUREMENT LAW Central & local government in NI spends some 3bn p.a. on works, supplies & services The private sector in NI is dominated (99.7%) by SME s Access to such a large stable market can clearly be a driver for economic growth However dominance of public sector also encourages legal challenges government may be the economic operator s only customer

7 THE SILENT EXPLOSION A combination of these factors, and the unwillingness of contracting authorities to concede points or enter into negotiations, have led to what McCloskey J described as the silent explosion of procurement litigation in Northern Ireland Many of the issues of importance to procurement lawyers have been litigated in the NI Courts This has encouraged the development of a strong specialist Bar Generally, economic operators have enjoyed significant success

8 THE SILENT EXPLOSION Cases of significance include: Partenaire v- DFP grant of interim relief prior to Remedies Directive Henry Bros v- DENI manifest error in the assessment of most economically advantageous tender McLaughlin & Harvey v- DFP non disclosure of selection criteria as breach of obligation of equality Easycoach v- DRD breach of obligations of equality and transparency in selection of tenderers and extension of time (express reference to the rule of law) Traffic Signs v- DRD breach of transparency and objectivity in creation of price/quality split First4Skills v- DEL principles to be applied in applications to lift statutory prohibition on contract award Clinton v- DEL duties relating to clarifications of bids and acquisition of further information ROL Testing v- Northern Ireland Water time limits

9 LESSONS LEARNED FROM LITIGATION The robust approach taken by the Courts to the enforcement of the key Treaty & Directive obligations of equality, transparency and proportionality has led to something of a sea change in the attitude of public bodies to procurement challenges, viz: A willingness to concede unanswerable claims Agreement to negotiate or mediate in suitable cases A desire to save legal costs and delay in significant projects

10 THE FUTURE SOCIAL VALUE? The NI Programme for Government now has an express commitment to include social clauses in all public procurement contracts Attempt to create additional benefits to the expenditure of public money Examples clauses re apprenticeships in construction industry; requirements to engage long term unemployed; use new buildings to deliver community benefits

11 DRIVER FOR INTEGRITY & DEVELOPMENT? Lord Bingham an unenforceable right or claim is a thing of little value to anyone The NI legal profession and the Courts have ensured that the EU principle of equality has real meaning to small business Jurisprudence has also brought clarity and accessibility to the legal principles engaged Ensured that public authorities make decisions lawfully and fairly With implementation of 2015 Regulations, further steps can be taken to drive socio-economic development