1. At the 21st Century Bar conference on 6 December 2013 Hastie Stable's Michael Howlin QC gave another of his talks on public procurement law. He squeezed into 30 minutes an update touching on: recent case-law from the CJEU, UK courts and courts in The Netherlands, France and Germany; the proposed new procurement directive; the new concessions directive; and the Scottish Parliament's Procurement Reform (Scotland) Bill. Points for emphasis included (1) the thorny question of so-called "horizontal", "in-house", or "horizontal in-house" contracting by contracting authorities and (2) the fact that, in public procurement matters, resort is increasingly being had to general principles of EU law (equal treatment, non-discrimination, transparency and proportionality).
2. Michael's notes for his talk go considerably beyond what could be discussed in the half-hour slot allocated to him. Cases from the CJEU considered in the notes include Ordine degli Ingegneri della Provincia di Lecce and Piepenbrock (both concerned with the rules on horizontal and/or in-house contracting laid down in the Teckal and Commission -v.- Germany line of authority), IVD (on the meaning of "body governed by public law"), Manova (on the rules governing when a contracting authority may call for further information and/or documentation from tenderers), Swm (on a tenderer's right to rely upon the experience and technical abilities of third parties in order to qualify) and Forposta (giving detailed guidance on the exclusion of tenderers for "grave professional misconduct"); a handful of promising cases pending before the CJEU are also touched on. Closer to home, Healthcare at Home in the Inner House of the Court of Session (the Scottish Civil Appeals Court) and Easycoach in Northern Ireland are dealt with (and the paragraphs on Easycoach identify aspects of the judgment which should be treated with caution).
3. The provisions of the proposed new procurement directive introduce a concept of "procurement" and codify the outcome of much recent case-law regarding the meaning of "bodies governed by public law", horizontal and/or in-house contracting and (in light of the pressetext tract of authority) the modification of contracts after they have been awarded. The distinction between "A" and "B" services is abolished and the boundary between the selection/qualifying criteria and the award criteria is rendered less rigid.
4. The new concessions directive introduces flexible provisions to govern the procurement of concessions, applies an extremely light touch to procedural matters and subjects the whole procurement exercise to the general principles of EU law (once again, equal treatment, non-discrimination, transparency and proportionality). Although it it not intended to do so, this directive may in fact give contracting authorities guidance on how to deal with "below threshold" procurements which have a cross-border interest within the EU.
5. Once enacted, the Procurement (Scotland) Bill will introduce new concepts such as "regulated procurement" and "regulated contracts"; it will impose general duties (and a "sustainable procurement duty") on contracting authorities, will require them to publish "procurement strategies" and in some cases will require them to have regard to "community benefit requirements"; it will also include provisions as to remedies. Certain matters are left to be dealt with by regulations to be made, or guidance to be issued, by the Scottish Ministers. The ensuing Act will overlap in part - but only in part - with existing EU legislation: both the extent and the consequences of the overlap (or non-overlap) may take some time to disentangle. What is certain is that the Act will add several further levels of complexity to this area of the law.
Michael's notes are avilable in pdf format, please contact the Clerks if you would like this sent via email or hard copy.