Public Procurement
EU
Foreign Subsidies
As indicated previously, Regulation (EU) 2022/2560 on foreign subsidies distorting the internal market imposes notification obligations on companies participating in procurement procedures where the estimated contract value is at least €250 million and the foreign financial contribution involved is at least €4 million per non-EU country. An Implementing Regulation sets out procedure and notification forms for foreign financial contributions in public procurement procedures.
Contracting authorities should bear in mind that Article 28(6) requires them to state in the contract notice or, where a procedure without a prior publication is conducted, in the procurement documents, that economic operators are under a notification obligation.
Energy Efficiency Directive
As outlined in the Construction and Energy sections, the new Directive (EU) 2023/1791 on Energy Efficiency comes into effect on 10 October 2023 and, except where otherwise stated in the Directive, is to be transposed in domestic law by 11 October 2025. Further information is available here.
Articles 7 requires Member States to ensure that “contracting authorities … purchase only products, services buildings and works with high energy-efficiency performance …..Member States shall also ensure that in concluding contracts … contracting authorities and contracting entities apply the energy efficiency first principle in accordance with Article 3”.
Article 3 provides for the energy efficiency first principle. Article 3(1) requires Member States to ensure that energy efficiency solutions, including demand-side resources and system flexibilities, are assessed in planning, policy and major investment decisions of a value of more than €100 million each or €175 million for transport infrastructure projects, relating to the following sectors: (a) energy systems, and (b) non-energy sectors, where those sectors have an impact on energy consumption and energy efficiency such as buildings, transport, water, information and communications technology (ICT), agriculture and financial sectors.
Energy efficiency first means “taking utmost account in energy planning, and in policy and investment decisions, of alternative cost-efficient energy efficiency measures to make energy demand and energy supply more efficient, in particular by means of cost-effective end-use energy savings, demand response initiatives and more efficient conversion, transmission and distribution of energy, whilst still achieving the objectives of those decisions”.
eForms
The Commission is consulting until 17 October 2023 on amendments to the digital standard forms in light of Member States’ needs and new technologies in the areas of procurement data.
Court permits exemptions relating to National Security
C-601/21 concerned a provision in Polish public procurement law which stated that it did not apply to contracts for the production of certain documents, stamps, legal markings etc. relating to a list of public documents (including, for example, identity cards and passports). The Commission sought a declaration that Poland failed to fulfil its obligations under public procurement law.
The Court declared that Poland had breached EU law in relation to some but not all of the documents. The personal documents of members of the military, police and other law and order bodies presented a direct and close link to the objective of protecting national security, with the result that they could justify additional confidentiality requirements. Poland was ordered to pay two-thirds of the Commission’s costs and the Commission to bear a third of its own costs.
“Member States will have to ensure that contracting authorities purchase only products, services, buildings and works with high energy-efficiency performance. Member States will also have to ensure that in concluding contracts, contracting authorities apply the energy efficiency first principle.”
IRELAND
DECC is consulting until 10 November 2023 on a draft Green Public Procurement Strategy and Action Plan. Further information is available here.
NORTHERN IRELAND
Can a Court grant an interim injunction in respect of an award under a Dynamic Purchasing System (“DPS”)?
In River Ridge Recycling (Portadown) Ltd v arc21 [2023] NIKB 86, the High Court dismissed River Ridge’s application for an interim injunction to prevent the award of a contract for services relating to haulage, treatment, recovery and disposal of waste. The competition was run through a DPS under the Public Contracts Regulations 2015 (the “Regulations”).
Under the Regulations, where a DPS is adopted, there is no requirement to publish a notice communicating the decision to award the contract, no requirement to observe a standstill period before a contract is entered into, and no automatic suspension of a contract awarded under the DPS, even where proceedings are issued.
The court noted the American Cyanamid principles, relevant for determining whether to apply interim injunctive relief. However, a novel point of law arose, namely whether it had jurisdiction to grant interim injunctive relief in light of the scheme set out by the Regulations.
River Ridge accepted that the Court’s inherent jurisdiction to grant an interim injunction was not completely ousted by the Regulations but submitted that such relief should only be granted in extraordinary circumstances, so as not to undermine the statutory scheme.
The Court concluded that its jurisdiction was not curtailed in any way by the statutory scheme and that it should continue to apply the usual American Cyanamid test when asked to grant interim injunctive relief. This was a flexible test which has regard to all the facts of each case. The Court based this on several reasons which allowed it to conclude that Parliament had not expressly removed the Court’s jurisdiction to grant interim interlocutory injunctive relief and that the statutory scheme recognised and preserved this inherent jurisdiction of the Court.
Even though the Court concluded that it could as a matter of law grant an interim injunction in a DPS case, in this case it did not. While there is a serious issue to be tried, damages would constitute an adequate remedy for any losses River Ridge might sustain. Considering the balance of convenience, it was just to confine River Ridge to a remedy of damages. Neither arc21 nor the public would suffer loss which could not be compensated in damages. If an injunction were granted, irredeemable disadvantage would accrue to the successful bidder.
UK
Cyber Essentials
Procurement Policy Note 09/23: Updates to the Cyber Essentials Scheme sets out actions relevant organisations should take to identify and mitigate cyber threats for certain types of contracts.