IRELAND
Abnormally Low Tenders, Reasons for Exclusion, and Standstill Letters
In Killaree Lighting Services Limited v Mayo County Council and Electric Skyline Limited, the Court of Appeal ([2025] IECA 7) largely upheld the High Court's conclusions ([2024] IEHC 79), albeit with a key point of difference on the impact of the failure to send a standstill letter. Our summary of the case is available here.
Access to Competitor's Pricing Structure
In Kerrigan Sheanon Newman Unlimited Company v Sustainable Energy Authority of Ireland ("SEAI") [2024] IEHC 65, a losing tenderer claimed that the price in the winning tender was too low, and sought disclosure from the SEAI of the winning tenderer's lower and confidential pricing structure.
The losing tenderer sought an order that one of its directors (not just its lawyers), would be permitted to be part of the confidentiality ring in the case. (A confidentiality ring is a group of named individuals who are the only ones permitted to view certain documentation produced by way of discovery.) The Court was advised that no Irish Court has permitted an employee/officer of a litigant to be part of a confidentiality ring in public procurement proceedings.
The Court refused to grant the order. It noted that, in cases such as these, a Court will have to balance the interests of a losing tenderer in seeking to discover evidence that will support his/her claim with the much broader and very serious undermining effect it would have on competition and public procurement generally, if losing tenderers could have access to the highly sensitive pricing information of competitors (by the simple act of challenging a public procurement process). There would have to be a very compelling set of circumstances in favour of the one-off challenge to a procurement process and against the public interest in protecting the integrity of procurement. The losing tenderer had not provided compelling arguments to justify such a significant encroachment on the confidentiality of a winning tenderer's bid.
EU
Negotiated Procedure without Prior Publication
Article 31(1)(b) of the previous iteration of the Public Contracts Directive allowed contracting authorities to award public contracts by a negotiated procedure without prior publication of a contract notice when, for technical or artistic reasons, or for reasons connected with the protection of exclusive rights, the contract may be awarded only to a particular economic operator. Relevant provisions are at Article 32(2) of the current Public Contracts Directive.
Case C-578/23 concerned the award of a contract for an information system. It was found that the awarding authority had not shown that, for technical reasons, the contract could only be performed by the company. Further, the need to protect the contractor's exclusive right to the source code was caused by the conduct of the authority's predecessor.
In reply to a reference from the national Court, the CJEU gave a preliminary ruling that the contracting authority may not invoke the protection of exclusive rights (such as those afforded by Article 31(1)(b)) where the reason for such protection is attributable to the contracting authority. The attributing of such a reason is to be assessed on the basis not only of the factual and legal circumstances around the conclusion of a contract for an initial service, but also all those characterising the period between the date of concluding that contract and the date on which the contracting authority chooses the procedure to be followed for the award of a subsequent public contract.
Technical Specifications in Procurement Documents
Case C-424/23 concerned a request made in a challenge to the award of public contracts for drainage works, in the context of which the authority required the use of pipes made of vitrified clay and concrete.
Article 42(3) of the Public Contracts Directive sets out ways in which technical specifications must be formulated. The CJEU held that the list of methods in Article 42(3) is exhaustive, without prejudice to mandatory national technical rules which are compatible with EU law, and without prejudice to Article 42(4).
Article 42(4) provides that, unless justified by the subject-matter of the contract, technical specifications shall not refer to a specific make, source, process, trademark, patent, etc favouring or eliminating certain undertakings or certain products. Such reference is permitted on an exceptional basis, and then must be accompanied by the words 'or equivalent'. The CJEU ruled that this means that contracting authorities may not, without adding the words 'or equivalent', state, in the technical specifications of a public works contract, the materials of which the products proposed by the tenderers must be made, unless the use of a particular material follows inevitably from the subject matter of the contract, it not being possible to contemplate an alternative based on a different technical solution.
Article 42(2) requires that technical specifications shall afford equal access of economic operators to the procurement procedure and shall not have the effect of creating unjustified obstacles to the opening up of public procurement to competition. The CJEU held that this is infringed where a contracting authority eliminates undertakings or products by means of a technical specification which is incompatible with the rules in Article 42(3) and (4).
Can Extension of a Guarantee Period be foreseen by a RWIND tender?
Case C-82/24 concerns a dispute after the completion of the works in which the contracting authority wishes the contractor to repair or replace the plant, and the contractor contends that a guarantee period has expired. The domestic court referred a preliminary question to the CJEU.
Article 2 of the previous iteration of the Public Contracts Directive required contracting authorities to treat economic operators equally and non-discriminatorily and to act in a transparent way. The Advocate-General recommends that the CJEU answer the question as follows:
- Article 2 does not prevent the inclusion in a public works contract of a clause which, in order to establish the temporal scope of a guarantee obligation, refers to the provisions of the national civil code.
- The principles of equal treatment and transparency in Article 2 are not, however, compatible with an interpretation of that clause which, by extending the guarantee period beyond what was agreed by the parties, could not be foreseen by a reasonably well-informed and normally diligent contractor.
International Procurement Instrument
The International Procurement Instrument (Regulation (EU) 2022/1031) is intended to support the reciprocal opening of public procurement markets to EU economic operators. A first investigation by the Commission under the Instrument found discrimination against EU medical devices in China's public procurement market. The Commission will assess measures that may be taken. The Commission published a report and staff working document, and a press release is available here.
UK
Procurement Act 2023
The new procurement regime in the UK comes into force on 24 February 2025. In addition to technical guidance, guidance on the central digital platform has now been made available:
- Suppliers: How to register your organisation and first administrator on Find a Tender in three easy steps
- Suppliers: detailed walkthrough - how an administrator completes and updates supplier information
- Buyers and Suppliers: How to use the Central Digital Platform, the enhanced Find a Tender service
- Contracting authorities: An overview of the Central Digital Platform, the enhanced Find a Tender service
This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.
