Public Procurement

NEW PROCUREMENT PLATFORMS

In Ireland, a new eTenders platform will go live on 15 May 2023. Further information is available here.

In the EU, the Commission launched the Public Buyers Community Platform, intended to facilitate cooperation and knowledge-sharing between public buyers across Europe. It follows launch of the Public Procurement Data Space aimed at pooling data on preparation of tenders, calls for tenders and outcome of tenders.

NORTHERN IRELAND CASE LAW

Court looks to well-established case law around Selection Criteria

In An Application for Judicial Review by Eddie Weir and the Chartered Institute of Architectural Technologists [2023] NIKB 4, the High Court in Northern Ireland dismissed a challenge to an awarding authority’s decision to specify that the role of lead consultant in a Dynamic Shortlisting System (“DSS”) had to be fulfilled by an architect, thus excluding chartered architectural technologists (“CATs”) from the role.

The Court noted that the CJEU has regularly stated that contracting authorities enjoy a discretion in relation to the technical and professional ability standards fixed by any given competition. While authorities may not use selection criteria to artificially narrow competition, they can set standards by which technical and professional ability can be measured. Frequently, a particular professional qualification is required to qualify for a competition for award of a professional services contract. This is permissible, provided it relates and is proportionate to the subject matter of the contract. This discretion must also exist in below threshold procurement competitions (such as this one) which, by their very nature, are subject to a much lighter touch legal regime.

The Court did not agree that the requirements of competition and fair dealing in the NI Public Procurement Policy (“NIPPP”) were breached. The evidence pointed to a conscious and informed decision having been made by the authority. There had been no artificial narrowing of competition.

The Court deemed affidavit evidence given by a chartered architect on behalf of the applicant inadmissible. He had purported to be a witness of fact rather than an expert witness, but his affidavit evidence was full of statements of opinion. He also failed to disclose to the parties certain matters such as a history of disputes with the Architects Registration Board.

UK

Procurement of Steel in Government Contracts

PPN 04/23 provides guidance on the procurement of steel for large projects, noting it is typically necessary to cascade requirements down through the contractor. It includes guidance on whole life costs and quality, including integration of social and environment considerations and a template clause aimed at ensuring data requirements are flowed upwards.