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"Self-cleaning" redirects here. For other uses, see "self-cleaning glass and "self-cleaning solar panels.

Regulation 57(13)-(17) recognises that businesses may have addressed the reasons why they may have previously committed excludable offences and demonstrated that they should now be considered a reliable and suitable business for performance of a public contract. The provision of evidence to this effect is known as 'self-cleaning'. To take advantage of this provision, businesses must demonstrate that they have paid fines or provided compensation for damages, "clarified the facts and circumstances in a comprehensive manner by actively collaborating with the investigating authorities" and taken appropriate steps relating to their organisation, policies, procedures and personnel to address the cause of previous failings.[41]

Termination of contract[edit]

Regulation 73 requires public authorities to include terms in public contracts which allow the contract to be terminated if its award or subsequent variation should not have taken place for reasons directly connected with the procurement regulations. These terms should deal with the mechanism for, and consequences of, termination. In the absence of such a term, a power for the contracting authority to terminate the contract on reasonable notice will be "implied.

Electronic invoicing in public procurement[edit]

Directive 2014/55/EU of the European Parliament and European Council on "electronic invoicing in public procurement (16 April 2014) [42] applies to electronic invoices issued as a result of the performance of contracts to which Directive 2009/81/EC, Directive 2014/23/EU, Directive 2014/24/EU or Directive 2014/25/EU applies. This directive aims to secure the development and implementation of a European standard on electronic invoicing.

Procedures[edit]

There are several different procedures available for public authorities. These include the Open, Restricted, Negotiated and Competitive Dialogue procedures. Each of these procedures sets its own limitations on the procuring authority, which must be considered when choosing the appropriate procedure.

The procedure is intended to be fully transparent with the intention of creating a free and competitive Europe-wide market. The rules state that for projects above a certain financial threshold (about €100K) a contract notice must be published in Supplement S of the Official Journal of the European Union "OJEU previously known as [OJEC S-Series]. Nowadays the information is available immediately on the web from Tenders Electronic Daily ('TED').[43]

The buyer can advertise the contract more widely, but cannot do so before it has dispatched a notice for publication in the OJEU, and is forbidden from including information not also included in the OJEU publication.

After the prescribed date, the bids are opened and assessed, and either the "lowest cost" or "most economically advantageous tender" is chosen. The "contract award must also be reported in the OJEU and be published electronically on Tenders Electronic Daily ('TED').

The system is under constant revision to avoid misuse. Rejected bidders are granted up to ten days to challenge a decision, and the "European Commission routinely acts to police infringements.[44]

Special forms of procurement[edit]

Framework agreements[edit]

Public contracting authorities may enter into framework agreements with one or more businesses, which prescribe the terms and conditions which would apply to any subsequent contract and make provision for selection and appointment of a contractor by reference directly to the agreed terms and conditions or by holding a competition inviting only the partners to the framework agreement to submit specific commercial proposals. These are not in themselves procurement contracts, but they set out the terms of such contract with suppliers in advance over a set time.

The 2004 Public Sector Directive codified rules for the procurement of goods and services through framework agreements, and the 2014 Directive amended these rules. Under the 2004 Directive, either one economic operator or more than three were to be party to a framework agreement, but the 2014 Directive also allowed a framework agreement to operate with just two economic operators. The term of a framework agreement may not usually exceed 4 years, "save in exceptional cases duly justified, in particular by the subject-matter of the framework agreement".[45]

Competitive procedure with negotiation[edit]

A competitive procedure allowing for negotiation with companies before finalisation of their tenders was introduced through Article 29 of the 2014 Directive (Regulation 29 in the UK Regulations). Contracting authorities using this procedure are required to provide to the market a description of their needs, the characteristics of the goods, works or services to be procured, and the award criteria which will ultimately be used to determine which business is to be awarded the contract to supply. Companies are invited through a contract notice or prior indicative notice to express interest in being invited to tender, and selected companies are then invited to submit an initial tender. Negotiations may take place between the contracting authority and each business in order to "improve the content" of each tender, before invitations are issued to submit a final tender. Final tenders are then evaluated against the previously published award criteria and a contract awarded.

The competitive procedure with negotiation may only be used in cases where the contracting authority's needs cannot be met through use of 'readily available solutions' without their adaptation, where there is a design or innovation element to the goods, works or services to be procured, where the nature, complexity or legal and financial aspects of contractual risk demand a negotiated solution. In addition, where a procurement for goods, works or services falling outside the above criteria has been undertaken and only irregular or unacceptable tenders have been received, the contracting authority may then adopt the competitive procedure with negotiation as the next stage of the procurement process.[46]

For example, on 3 June, 2016, "Bridgend County Borough Council issued an invitation to express interest in participating in a competitive procurement with negotiation for waste collection services.[47]

Public-private partnerships[edit]

"Public-private partnerships are not subject to special rules in EU procurement law, but must follow the rules and principles resulting from the European Treaties, including those embodied in secondary legislation.[48] In 2000, the European Commission published an "interpretative communication on concessions under Community law",[49] and in 2004 it published a ""Green Paper on public-private partnerships and Community law on public contracts and concessions",[50] which takes stock of existing practices from the perspective of European law and is intended to launch a debate on whether a specific legal framework should be drawn up at the European level. The competitive dialogue was created with the aim of making the award of public-private partnerships easier,[51] since before its creation, a Contracting Authority faced the choice of the restricted procedure, which is often too inflexible for such contracts, or the negotiated procedure, which is intended to be an exceptional procedure with specific legal justifications. Its use so far in the EU, has, however, been uneven. Up to June 2009, more than 80% of the award procedures using competitive dialogue have been launched in two EU Member States i.e. France and the United Kingdom.[52]

Design contests[edit]

Articles 78 to 82 of the 2014 Directive (Regulations 78 to 82 in the UK Regulations) provide for the conduct of a design contest, which may be either a stage in a procurement process leading to the award of a services contract, or a competition for which a prize is to be awarded or payment to be made. The Directive suggests that design contests are held "mainly in the fields of town and country planning, architecture and engineering or data processing".[53] A Design Contest Notice must be issued in the OJEU.[54] Where a jury is used to assess the plans and projects submitted by candidate businesses, it must consider the plans anonymously and retain minutes of any clarification discussions which take place with candidates.[55]

Example[edit]

The Danish "Herlev Hospital issued a Design Contest Notice on 13 April 2016 for the design of the Steno Diabetes Center Copenhagen,[56] intending to award a service contract following the contest to the winner or winners of the contest.

Innovation partnerships[edit]

The 2014 Directive provides for a new Innovation Partnership type of contract, whereby businesses are invited to submit "research and innovation projects aimed at meeting the needs identified by the contracting authority that cannot be met by existing solutions".[57] An Innovation Partnership is a contractual relationship formed between a public body and one or more businesses which enables the public body and the business(es) to work together through a partnership agreement in order to develop "new products, works or services, where these are not already available on the market.

Innovation Partnerships were first endorsed among a series of public procurement reforms introduced in the 2014 Directive, and implemented in the UK's Public Contracts Regulations 2015. The EU is expected to publish its guidance in 2016 as to how it sees Innovation Partnerships working [58] and other EU states are expected to implement the new regulations by April 2016.[59] Innovation Partnerships are likely to be long-term in nature and may involve contracts across three phases covering research and "proof of concept, an intermediate development phase and a purchase phase. The "European Parliament welcomed the new option as an opportunity 'to strengthen innovative solutions in public procurement' by 'allow[ing] public authorities to call for tenders to solve a specific problem without pre-empting the solution, thus leaving room for the contracting authority and the tenderer to come up with "innovative solutions together'.[60]

Objectives[edit]

The promotion of innovation forms part of the European Union's "Europe 2020 ten-year growth strategy. The EU seeks "to create an innovation-friendly environment that makes it easier for great ideas to be turned into products and services that will bring our economy growth and jobs" [61] and the objectives of Innovation Partnerships can be seen as:

Process[edit]

To commence the process of establishing an Innovation Partnership, a contracting authority must publish a Contract Notice in the "Official Journal of the European Union (OJEU), which will 'identify the need for an innovative product, service or works that cannot be met by purchasing products, services or works already available on the market, and indicate which elements of this description define the minimum requirements to be met by all tenders'.[62] There is a 30-day statutory minimum period from dispatch of the Contract Notice to the OJEU office to the closing date for requests from businesses wishing to participate in the process.[63] From the companies who have asked to participate within the application period, the contracting authority will select suitable businesses based on objective criteria, which must include "capacity in the field of "research and development and of developing and implementing innovative solutions".[64] At least three businesses must be selected provided that there are three suitably qualified businesses interested.

The selected businesses will then be invited to submit "research and innovation projects aimed at meeting the needs identified by the contracting authority that cannot be met by existing solutions".[65] Once project proposals have been received, the contracting authority will assess them against pre-determined and published criteria and may select one or more projects to proceed. For any project that the contracting authority wishes to pursue, they will then negotiate a contract with the project proposers which is likely to cover:

At intermediate stages, the number of businesses involved in the partnership may be reduced, for example, where "proof of concept stages do not produce satisfactory or economic proposals which the contracting authority would contemplate purchasing in due course. Once a product or service has been developed which meets the contracting authority's needs, each of the partners is invited to submit a final and non-negotiable tender for the manufacture and supply of the products to the contracting authority or for performance of the service, and these tenders are evaluated to identify which offers the best combination of price and quality with a view to one of them being awarded a long-term supply contract.

Responses[edit]

Initial expectations are that the procedure will see limited use. Concerns have been raised by some commentators, particularly in relation to the potentially "anti-competitive effect of the procedure.[59]

Examples[edit]

Examples are limited to date. On 23 July 2015 the "Christie NHS Foundation Trust based in "Manchester issued a Prior Indicative Notice regarding an intention to procure "a patient information/entertainment platform delivering patient tailored content over "wireless infrastructure to mobile devices within the Trust" and stated that the Trust "intends to use the Innovation Partnership procedure for any subsequent procurement process" and wishes "to enter a long-term partnership with an organisation to develop a new patient focused extensible information/entertainment platform.".[66] "Worcestershire County Council issued a Prior Indicative Notice on 16 December 2015 seeking to appoint up to five businesses interested in "developing, test[ing] and bring[ing] to the market innovative technology in care solutions".[67][68]

Joint Procurement[edit]

The 2014 Directive makes provision for "occasional joint procurement", whereby two or more contracting authorities undertake an entire procurement process or aspects of it together, including occasions when contracting authorities from different EU member states undertake procurement jointly. The Directive makes provision for authorities to assume joint responsibility for compliance with regulations applicable to the procurement process.[69]

Light-touch regime[edit]

The light-touch regime (LTR) is a specific set of rules for certain service contracts which tend to be of lower interest to cross-border competition. Those service contracts include certain social, health and education services, defined by Common Procurement Vocabulary (CPV) codes. The list of services to which the Light-Touch Regime applies is set out in Schedule 3 of the Public Contracts Regulations 2015 (Annex A). This regime allows for significantly fewer procedural limitations and only applies to services contracts valued over €750,000 (£589,148 in the UK).

Bibliography[edit]

References[edit]

  1. ^ Bovis (2007), viii.
  2. ^ PwC, London Economics and Ecorys, Public procurement in Europe: Cost and Effectiveness, March 2011, accessed 21 September 2016
  3. ^ a b Bovis (2007), 10.
  4. ^ Bovis (2007), 11.
  5. ^ J.O. 1962 36/32; Bovis (2007), 17.
  6. ^ Commission Directive 66/683/EEC of 7 November 1966 eliminating all differences between the treatment of national products and that of products which, under Articles 9 and 10 of the Treaty, must be admitted for free movement, as regards laws, regulations or administrative provisions prohibiting the use of the said products and prescribing the use of national products or making such use subject to profitability (unofficial English translation), OJ 220, 30.11.1966, p. 3748
  7. ^ Bovis (2007), 18.
  8. ^ Bovis (2007), 19–20.
  9. ^ Bovis (2007), 21.
  10. ^ Bovis (2007), 2–3.
  11. ^ Bovis (2007), 5.
  12. ^ Bovis (2007), 4.
  13. ^ Bovis (2007), 23.
  14. ^ Bovis (2007), 23–25.
  15. ^ Bovis (2007), 26–27.
  16. ^ Bovis (2007), 28–29.
  17. ^ Bovis (2007), 30–33.
  18. ^ Bovis (2007), 39.
  19. ^ Bovis (2007), 40–42.
  20. ^ Bovis (2007), 43.
  21. ^ Bovis (2007), 44.
  22. ^ Bovis (2007), 45.
  23. ^ Bovis (2007), 49–50.
  24. ^ http://ec.europa.eu/growth/single-market/public-procurement/rules-implementation_en
  25. ^ https://www.gov.uk/government/publications/procurement-policy-note-0215-public-contracts-regulations-2015
  26. ^ Office of Government Procurement (2014), Public Consultation on the Transposition of the new EU Procurement Directives, accessed 4 February 2016
  27. ^ UK Public Contracts Regulations 2015, Regulation 42(8-9)
  28. ^ European Commission, May infringements' package: key decisions, Brussels, 26 May 2016, accessed 29 May 2016
  29. ^ Bovis (2007), 13.
  30. ^ Bovis (2007), 13–14.
  31. ^ Bovis (2007), 65–66.
  32. ^ Bovis (2007), 67–68.
  33. ^ Bovis (2007), 70.
  34. ^ Commission Regulation (EC) No 1177/2009 of 30 November 2009 amending Directives 2004/17/EC, 2004/18/EC and 2009/81/EC of the European Parliament and of the Council in respect of their application thresholds for the procedures for the award of contracts
  35. ^ Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts
  36. ^ Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors
  37. ^ Bovis (2007), 70, citing Commission document CC 9364, 1995.
  38. ^ Bovis (2007), 71–72.
  39. ^ Public Contracts Regulations 2015, Reg. 57(1)-(3)
  40. ^ Public Contracts Regulations 2015, Reg. 57(8)
  41. ^ Public Contracts Regulations 2015, Reg. 57(13)-(17)
  42. ^ Directive 2014/55/EU of the European Parliament and of the Council of 16 April 2014 on electronic invoicing in public procurement
  43. ^ ted.europa.eu – Tenders Electronic Daily
  44. ^ European Commission > Internal Market > Public Procurement > Infringements
  45. ^ Public Contract Regulations 2015, Reg. 33(3)
  46. ^ Public Contracts Regulations 2015, Reg. 26(4)
  47. ^ Contract notice, accessed 6 June 2016
  48. ^ Bovis (2007), 52.
  49. ^ Commission interpretative communication on concessions under Community law
  50. ^ Green Paper on public-private partnerships and Community law on public contracts and concessions, see also the Summaries of EU legislation > Internal market > Businesses in the internal market > Public procurement > Green Paper on public-private partnerships
  51. ^ Barlow, J. Roehrich, J.K. and Wright, S. (2010), De facto privatisation or a renewed role for the EU? Paying for Europe's healthcare infrastructure in a recession. Journal of the Royal Society of Medicine. 103:51–55
  52. ^ Burnett and Oder (2010), 34.
  53. ^ Definition of "design contests", Public Contracts Regulations 2015, Reg. 2(1)
  54. ^ Design Contest Notice
  55. ^ Public Contracts Regulations 2015, Reg. 82
  56. ^ Design Contest Notice: Denmark-Herlev: Architectural design services: 2016/S 072-125180
  57. ^ Directive 2014/24/EU of the European Parliament and the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC, article 31
  58. ^ Innovation Partnerships: a new route to market, accessed 4 January 2016
  59. ^ a b Rowan, A., The Innovation Partnership accessed 4 January 2016
  60. ^ New EU procurement rules to ensure better quality and value for money, accessed 18 September 2015
  61. ^ European Commission, Innovation Union - a Europe 2020 initiative, accessed 6 January 2016
  62. ^ Public Contracts Regulations 2015, Reg. 31
  63. ^ Public Contracts Regulations 2015, Reg. 31:5
  64. ^ Public Contracts Regulations 2015, Reg. 31:20
  65. ^ Public Contracts Regulations 2015, Reg. 31:21
  66. ^ Official Journal of the European Union, Prior Indicative Notice 258463/2015, accessed 2 January 2016
  67. ^ Worcestershire County Council, New Technology, accessed 2 January 2016
  68. ^ Official Journal of the European Union, Prior Indicative Notice 440912-2015, accessed 2 January 2016
  69. ^ Directive 2014/24/EU of the European Parliament and the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC, articles 38 and 39

External links[edit]

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