eSignature Legitimateness for Procurement in European Union

How to eSign a document: e-signature legitimateness for Procurement in European Union

well one of the major changes i think will be with regard to the actual uh transposition of the regulations um in ireland are the the transportation of the directors ireland is proposing to transpose these directors by means of very detailed regulations i've seen a copy of the regulations there are about 102 provisions about 80 or 90 pages and this is a quite a change from existing practice um currently uh the the the directives have been transposed by um statutory instruments which basically say the directors are part of irish law but now the new regulations are much more detailed so um smes and contracting authorities will need to look at the particular regulations instead of looking to the directive so that's i think one of the significant changes um that we're going to see in ireland a couple of other changes i think we're highlighting um first of all there's going to be an increased transparency with these new directives particularly with regard to for example the whole idea of weighted criteria one of the obligations in the new directives is that contracting authorities would publish the weightings relating to each criteria so for example if you're going to be giving price say 50 or 60 of the marks you must say that in advance either in the tender notice or in the tender documentation and that's quite a change i think in terms of a procedure in ireland we haven't really seen too much of that before is it going to make a big uh is it going to be of huge significance to tenders personally i don't think so um because even though the the tender document may indicate that should say price has got uh 50 to the mark's quality only has 20 percent of the marks a delivery date say has 20 of the marks um the contracting authority still has flexibility as to how it's going to mark each of those criteria so you often see um in scoring matrix matrixes um a spread say on um price so if the if the marks are thirty percent of force becomes marks um you might see one firm getting a hundred percent of that whereas the other firms only get twenty or thirty percent um whereas on the other uh criteria like for example quality often there's a very very small spread that most firms will come in around the same level so there's still quite a bit of flexibility there for contracting authorities to uh to to score the score the tenders as they see fit a couple of other changes i think worth a noting um there's going to be i think a greater move towards centralized purchasing we've already seen this in ireland for example in the health sector and we now have the health service executive which does um a lot of centralized purchasing the new directives contain specific provisions relating to centralized purchasing they basically say that um any contracting authority acquiring true or from a central purchasing agency will be deemed to have complied with the public procurement rules if that contracting authority has complied with the rules and i think that is quite significant because as i said there is a greater move towards centralized purchasing particularly in areas like the health sector where there is a need to achieve value for money another important change obviously will be with with regard to the whole area of competitive dialogue procedure the competitive dialogue procedure and this procedure is aimed at kind of complex uh projects so the classic example is the typical ppp or public-private partnership project or in the uk it's referred to as the pfi project um private finance initiative project and the competitive dialogue procedure in the new directives is kind of aimed at that type of procedure um it's aimed at opening up a dialogue with tenders at the beginning stage of the tender procedure to allow attenders to have an input into the specifications and that the contracting authority is going out to tender on will this have a significant impact on how pvps are procured in in ireland and the uk i think the answer is probably yes i think there's going to be an increased use of this um competitive dialogue procedure and not because it offers a huge degree of flexibility to contracting authorities in the way that they're going to procure but more because um there's going to be it's going to be very difficult to bring procedures um under the circumstances for use of the negotiated procedure and this has been one of the issues that has presented itself on several occasions in recent years particularly with regard to um the the use of the negotiated procedure in in complex projects so i think competitive dialogue procedure we're going to see much more of it but um is it the answer to everybody's um woes i don't think so um and the reason is because there isn't going to be a flexibility for negotiations after the tender comes in this was something that was uh negotiated at uh in the european parliament when the directors were going to true uh the uk in particular wanted um to have negotiations in a competitive dialogue procedure after the tenders had been received and but unfortunately um it never got true into the final directives um so in this new competitive dialogue procedure while there may be negotiations prior to tender submission after tenders are submitted um there won't be any flexibility for um negotiations so i think they're you know the competitive dialogue we're going to see a lot more use of it but is it going to be the answer to all the problems i don't think so so those are i think the primary changes that we're going to see in my opinion the green book and the guidelines are more a set of binding rules i say this even though they are not considered to be legally binding um but they do have consequences for contracting authority who fails to comply with the guidelines for example if a contracting authority fails to comply with the guidelines the auditor and controller general may initiate an investigation into the actual procurement procedure under the 2001 code of conduct for the governance of state bodies there is an obligation in there for each contracting authority at the end of every budgetary year to send a letter to the to their relevant minister confirming that they have complied with the irish guidelines and with eu public procurement rules where they're applicable um if the contracting authority fails to extend this letter to the minister um obviously there will be um issues raised from their budget perspective and but also they may be called before an iraqi subcommittee to give information with regard to why they haven't followed the procurement rules there's been a very low level of cases um in the irish courts and with regard to public procurement there's been less than 10 judgments from the irish courts in regard to public procurement i think the reason for this is uh really time and cost factors but also there is a a very high standard of proof required in order to show that a contracting authority hasn't has acted um in contravention of the public procurement directives um in ireland we've had a case the sayak case which basically said that in order for a tender to show that a contracting authority has acted in contravention of the rules they would need to show a manifest error on the fate of the record and to establish that the breach has occurred this is a very high standard of proof and i think is one of the reasons why there have been a very low level of cases in the irish courts the european commission has just recently completed a consultation on a review of the remedies directive as we know there's recently been changes to the public sector and utilities directive directors which are currently being transposed into national law but there is now a review of the remedies direct was going on at european level and one of the calls by the commission in that consultation is for a national public procurement body in each member state this national public procurement body would deal with disputes outside of the courts and would be possibly equivalent to a body such as the competition authority in ireland and i think that a procurement body would be a very useful entity to have both from a purchaser's perspective and from a supplier's perspective and i say this for a number of reasons first of all there's the time and the cost factors i think it's important it would be useful for both the purchaser and supplier not to have to spend so much time and cost um in the courts in order to either defend or prosecute or to to litigate um the procurement procedure second of all the uh the public procurement authority would be able to establish a set of uh guidelines or decisions or there would be guidance maybe emanating from their decisions with regard to how contracting authorities have conducted their procurement procedures and whether they are in compliance with the public procurement rules so i think that this is an area we're going to see some reform in i think that we are going to see uh public procurement national public procurement authorities and member states in the coming years and i actually do think that this is a welcome development both from a purchasers and a supplier's perspective there's a number of issues that a purchaser has to think about in drafting its pre-qualification questionnaire for example uh it has to think about the finite the level of financial uh turnover thresholds that will it will be setting often a contracting authority will set a threshold of say a one million euros a a tender has to have a financial turnover in the previous financial year of one million euros a lot of smes might meet those thresholds and it can exclude quite a number of tenders from the process so the contracting authority has to think about the level at which it wants to pitch its financial and and technical criteria out with regard to developing scoring matrixes there has been a case from the european court of justice with regard to developing scoring matrixes for pre-qualification procedures in the universal sally bow case the contracting authority had developed a scoring matrix for a pre-qualification questionnaire um in advance of publishing the contract notice in the official journal it had then then deposited this scoring matrix with a notary and the and hadn't circulated the scoring matrix to tenders and the case came before the court of justice and the court held that the contracting authority should actually have submitted the submitted this scoring matrix to all tenders in advance um this would have increased the transparency in the process tenders would have known what the weightings were for the pre-qualification questionnaires and ever for the pre-qualification questionnaire and therefore probably would have been better able to answer the pre-qualification questionnaire so i think scoring matrixes often are one of the issues that arise for contracting authorities in developing a pre-qualification questionnaire in determining whether to bring an action in regard to an apparent breach of the public procurement rules the would-be litigant really should seek some form of debriefing from the contract from the contracting authority contracting authorities are obliged to give purchase or to give suppliers and smes um reasons as to why they haven't been successful in the tender procedure however however contracting authorities often uh give very scant reasons as to why they've been unsuccessful and suppliers often use the freedom of information act in order to obtain this information in deciding whether or not to bring a lawyer to a debriefing meeting with the contracting authority really the question is how serious is the alleged breach if there is a very serious breach of the public procurement rules i would advise bringing a lawyer to that meeting if there's only a likelihood that there is maybe a small breach of the rules generally it wouldn't be advisable to bring a lawyer because it can maybe bring the wrong tone to the meeting and the contracting authority mightn't be so forthcoming with the information so i think every every supplier or every purchaser or every supplier should be seeking um information as to why they haven't been successful in their agenda process and it's only when they have that information should they be considering litigation there are a number of fundamental principles that underlie the public public procurement rules these fundamental principles have been established by the european court of justice in a body of case law on the public procurement directives in regard to the principle of equality of treatment which is one of these fundamental principles which underlies the public procurement rules there is an obligation on the contracting authority to treat all tenders equally for example in practice this means that if a contracting authority responds to a particular tender with regard to for example a clarification on the tender document it should be sending that clarification to all tenderers often contracting authorities will require that any clarifications with regard to tender document documentation be made in writing and any responses there therefore are circulated to all tenders in writing this ensures that the principle of the quality of treatment is complied with with regard to the principle of transparency this has been the subject of a number of cases at the european court of justice um in the tele-austria case the european court of justice held that the principle of transparency meant at the very least um publishing an advertisement and sufficient to ensure genuine competition so as to open up a competition in the services market now the question is whether or not the principle of transparency actually goes beyond that and requires the contracting authority to act in a transparent manner in the new public procurement directives article 2 of the public sector directors states that there is an obligation on contracting authorities to act in a transparent manner so it's arguable that actually this principle of transparency is wider than an obligation to publish an advertisement no notice in for example the official journal or in the national media with regard to the principle of proportionality this basically means that contracting authorities can't set evaluation criteria or pre-qualification criteria which are disproportionate so for example if a contracting authority is building a small road they can't set a financial turnover threshold of say 20 million euros or 30 million euros when that financial threshold absolutely has nothing to do with the subject nature of the contract so proportionality often really relates to the to the level at which criteria financial and technical criteria are pitched at you