EU Public Sector Outsourcing : The Legislative Rules

Transcription

1 EU Public Sector Outsourcing : The Legislative Rules Introduction The trend toward outsourcing IT is not new. During the 1980 s in the UK, as the Thatcher Government began to privatise public utilities (electricity, telecommunications, gas etc.) the European Commission (EC) implemented legislation Directives concerning the procurement of services in the public sector to also encourage an open, competitive market. Open, competitive markets being viewed as the route to economic prosperity. For example, amongst Local Authorities, many services and public amenities have been outsourced i.e., IT, waste disposal, grounds and maintenance, sport and leisure. This paper provides a high level overview of public sector outsourcing within the EU and will be of use to either public sector workers or, potential suppliers of services with no prior knowledge and/or experience. The Directives and Regulations In the UK and the rest of the European Union (EU), the civil service, local authorities and other public sector organisations are regulated at law in their procurement practice; the EC Procurement Directives. Utilities i.e., water, energy, transport and telecommunications, are also regulated according to similar although not identical procedures whether or not they are in the public sector. Contracting authorities and utilities must award contracts according to objective criteria. Page 1 of 5

2 The UK Regulations implementing the Directives are the Public Services Contracts Regulations which implement the EC Services Directive 2. They cover the award of contracts to service-providers for all the white-collar and professional services in the public sector. Contracts for services awarded by utilities are subject to a separate Directive, the Consolidated Utiliites Directive 3, implemented in the UK by the Utilities Contracts Regulations 4. The Purpose of the Legislation The purpose of these directives is to create and ensure a single internal market for trading in goods and services. This implies any business within the EU in whatever country should be able to bid for work anywhere else in the EU. Within the Regulations, all public contracts over a given value (which alters periodically) should be publicised and awarded according to principles of transparency, non-discrimination and competition. Public Notices - Publication All public notices required in connection with the tendering and award processes by public authorities or utilities where the value exceed the threshold must be publicised in the Official Journal of the European Union (Official Journal 5 ). Notices stating the changes made every two years to the thresholds are also published in the Journal. The Official Journal comes in three sections; C which publishes notices such as those relating to the threshold value; L which publishes Community legislation and S which publishes contract details in the form of notices. The S-series is available online as the Tenders Electronic Daily, referred to as TED 6. The EC Office for Official Publications in Luxembourg ensures that the notices are published within 12 days of receipt. They must publish within 5 days if requested to do so by electronic mail, telex or fax, where reduced time limits are sought for reasons of urgency. Page 2 of 5

3 The procedure for contracting authorities requires 3 types of notices at various stages: - the prior information notice - the contract notice and - the award notice There are model forms of notices which should be followed, each containing specified information. Prior information notices are published soon after the start of a contracting authority s financial year, for the purposes of announcing those services contracts which fall within the legislation which it expects to be awarding in that year. The equivalent notice for utilities is the periodic indicative notice. This is advance information to contractors who might be interested, and avoids any obligation for the utility to publish a new notice for every individual contract during those 12 months. Notifications : Process Once a decision is taken to proceed, a contract notice gives more information about an individual contract, according to which specific procedure is being followed: inviting tenders (the open procedure i.e., no pre-selection takes place interested parties submit priced bids) or requesting interested parties to participate (the restricted or negotiated procedure i.e., pre-selection takes place. Selection can be based on technical ability and financial standing). The award notice is published when the contract has been awarded. Selection Criteria Selection of the successful tenderer must be assessed in terms of: Page 3 of 5

4 - soundness and integrity - economic and financial standing and - technical capability. Additional criteria may be specified provided they are not discriminatory. The only grounds on which to award a public services contract are either that the tender is the most economically advantageous to the authority or, that it is the lowest-priced. Complaints and Awards : via the Courts EC Directives setting out procedures for lodging a complaint against contracting authorities or utilities 7 and, detailing the remedies available if the procedures are not followed have been implemented into UK law. Unsuccessful tenderers based in the EU who have genuine cause for complaint over the selection procedures, have remedies through the courts directly against contracting authorities and utilities who do not comply with the public procurement obligations. For example, a supplier may believe they have been unfairly excluded from bidding. If the contract at issue has not been awarded, but a supplier believes that its own rights are about to be infringed, it can apply for an injunction to suspend an unlawful tender procedure, set aside an unlawful decision or stop an award from being made. This injunction is an interim remedy granted before the full case is heard. If the supplier looses, it could end up having to compensate the authority. Additionally, the supplier may have to give an undertaking that it will pay any damages which the contracting authority suffers through the injunction e.g., due to delay in awarding the contract. Damages can be awarded against a contracting authority that fails to comply with the procurement regime. If the contract has been awarded, an aggrieved supplier which believes that it has suffered loss as a result of a breach of the procurement rules because it has not won the contract yet believes it should have and which can quantify the loss it consequently suffers, may claim damages against the contracting authority concerned through the courts if the Page 4 of 5

5 procedure was not complied with or, the contract has been unfairly awarded to another party. The Regulations provide no guidance as to the limits of damages to be awarded. A legal action must be brought promptly; within 3 months of the date the grounds first arose unless the court extends that time limit by reason of exceptional circumstances. Complaints and Awards : via the Commission The European Commission is itself entitled to take action to enforce the Directives within member states, and a supplier may alternatively make a complaint to this body. Whilst this is confidential and avoids legal costs, it is not a means of obtaining damages since the Commission brings actions against member states rather than the defaulting contracting authority. itilhelp.com 2004 End Notes: 1 Public Services Contracts Regulations 1993 (SI 1993 No.3228) 2 EC Services Directive (92/50/EEC) 3 93/38/EEC Coordinating Procedures of Entities Operating in Excluded Sectors (water, energy, transport and telecommunications) (OJ1993L 99/84) 4 The Compliance Directive (89/665/EEC) and the Utilities Remedies Directive (92/13/EEC) 5 Official Journal of the European Union, The Office of Official Publications of the European Communities, 2 rue Mercier, L-2985, Luxembourg Fax Tenders Electronic Daily (TED), ECHO, Customer Services, BT 2373, L-1023, Luxembourg. 7 The Compliance Directive (89/665/EEC) and the Utilities Remedies Directive (92/13/EEC) Page 5 of 5