Public Procurement Law

EU legislation

The key directives to be aware of are:-

Directive 2014/24/EU on public procurement (goods, services and works);
Directive 2014/25/EU on procurement by entities operating in the Utilities Sector, i.e. the water, energy, transport and postal services sectors;
Directive 2014/23/EU on the award of Concession contracts.

The above Directives have their genesis in previous EU policy and legislation.

Irish Legislation

The following are some of the more important examples of procurement legislation in the Republic of Ireland:-

European Communities (Public Authorities’ Contracts) (Review procedures) (Amendment) regulations 2015;
European Union (Award of Public Authority Contracts) Regulations 2016;
European Union (Award of Contracts by Utility Undertakings) Regulations 2016;
The European Communities (Public Authorities Contracts) (Review Procedures) Regulations 2010;
The European Communities (Award of Contracts by Utility Undertakings) (Review Procedures) Regulations 2010;
Order 84A of the Rules of the Superior Courts – Review of the Award of Public Contracts

Procurement Thresholds

Thresholds are set every 2 years by the EU over which Public Authorities must advertise and publish to procure services and supplies.

There has been a significant increase in the number of Tenders published by Public Authorities and in particular, the HSE and this trend will continue to increase in to the future.

National Framework Agreement

National Framework Agreements are increasingly used by State Bodies and Public Authorities in procuring products and services in the Irish market place.
There has been an increased trend towards National Framework Agreements in compliance with European and Irish Procurement law.
The National Framework Agreements are viewed as publicly reviewable contacts, very important in a legal context, meaning a legal challenge may be mounted in respect of same.
State Bodies and Public Authorities will argue that time runs from the issuing of the National Framework Agreement and the law dictates you must act to protect your position within 30 days or lose your right to challenge in the High Court.
An infringement notice should issue 14 days from that date time begins to run however this is not absolutely mandatory in a legal context.
Upon a National Framework Agreement being issued if you are a competitor and are frustrated or have an issue which may disqualify you from competing to qualify as an appointee to the National Framework Agreement then you should contact Alan Wallace at Mangan O’Beirne Solicitors as soon as possible to seek legal guidance.

Mini Competition

Once a National Framework Agreement is established then the Public Authority may run mini competitions off the National Framework Agreement between the appointees to the National Framework in respect of individual contracts to be awarded
A mini competition is a competitive process whereby the Public Authority confirms its requirements and the appointees compete to win the contract using pre-determined qualitative criteria weighted depending on product / service.
Significantly, legally State Bodies and Public Authorities view mini competitions as not publically reviewable contacts and you should seek legal guidance at an early juncture if an issue arises.
Common place issues surrounding mini competitions vary from mandatory criteria inclusive of financial and / or technical, drafting of the mini competition, lack of transparency or bias.
Judicial review proceedings must be issued under European / Irish Law within 30 days if, sufficient grounds exist to challenge the award of the mini competition and it is critical to seek legal guidance as soon as possible once an issue arises.
A standard method of assessing mini competitions is by using the Most Economically Advantageous Test (“MEAT”) to determine the outcome of the mini competition. EU and Irish legislation has included a non-exhaustive list of award criteria to be considered in the evaluation process such as the following
- quality,
- price,
- technical merit,
- aesthetic and functional characteristics,
- environmental characteristics,
- running costs,
- cost effectiveness,
- after sales service,
- technical assistance,
- delivery date and,
- delivery period
Weightings of the award criteria may be weighted according to the service or product requirements for the individual contract and this must be notified to all competing tenders/appointees to the National Framework process.
Cost is normally the most significant category of weighting.