IRELAND
National Development Plan
An updated National Development Plan indicates that, in addition to €275.4 billion of public capital investment for 2026-2035, there will be €10 billion in equity funding for 2026-2030 to support the delivery of large projects in water energy and transport sectors. The Government states that this is the largest ever capital investment plan in the history of the State.
Green Public Procurement
Circular 17/2025 is intended to provide updated instructions to the public sector on actions in Buying Greener: Green Public Procurement Strategy and Action Plan 2024-2027. It replaces Circular 20/2019 on Promoting the use of Environmental and Social Considerations in Public Procurement.
One of the actions includes that, for all tenders above the national advertising thresholds, all public sector bodies are to include Green Public Procurement criteria in all tender documents, where possible. In addition, all public bodies must specify low carbon construction methods and low carbon cement material as far as practicable for directly procured or supported construction projects. The Circular also references requirements that will apply with the transposition of the Energy Performance of Buildings Directive.
Government Supply Expo 2025
The Government intends to bring together suppliers and representatives from the public sector at an event on 11 November 2025, indicating that this is an opportunity to learn about upcoming opportunities, tenders, procurement plans, and how to register as a supplier.
Capital Works Management Framework
Appendix A of the Suitability Assessment Questionnaire is updated with the intent of clarifying for each procurement the application of Section C.15 (on exclusion grounds) to below-threshold procurement competitions.
EU
Foreign Subsidies Regulation
The European Commission is consulting until 12 September 2025 on draft guidelines on the implementation of the Foreign Subsidies Regulation. The draft includes guidance on how the Commission concludes whether there is a distortion of competition caused by a foreign subsidy; how it applies the balancing test (that is, whether positive effects counterbalance the distortive effects of the foreign subsidy); and its power to request the prior notification of concentrations or foreign financial contributions in public procurements, in cases below the notification thresholds. It is intended to finalise and publish the guidance by January 2026.
As mentioned in previous updates, the Foreign Subsidies Regulation aims to prevent distortions in the EU internal market caused by foreign subsidies, including in the context of public procurement procedures conducted in the EU. It requires companies to notify their tenders when the estimated value of the contract exceeds €250 million, and when the company has been granted at least €4 million in foreign financial contributions from a third country in the three years before the notification. It gives the Commission certain powers to investigate and order redressive measures.
Price Criteria
Case C769/23 considers whether a national rule in Italy forbidding the use of price as the sole criterion in labour-intensive services is compatible with EU law. The Ministry of Defence had issued a tender for labour services, including loading, unloading and transport of materials, which included explosives and munitions.
Advocate-General Norkus advises the CJEU to reply that Article 67(2) of Directive 2014/23/EU does not prevent national legislation prohibiting contracting authorities from using the lowest price as the sole award criteria for a public contract for services which are both labour-intensive and standardised, even though the tender specifications provide that the salaries of the persons employed under the contract are paid in accordance with the relevant national sectoral collective agreement, and that any price discount offered may be based solely on the potential profit of the tenderer.
Advocate-General Norkus also observed that, where the defence elements of a contract are marginal or insignificant, it may be in the interest of the contracting authority to choose to apply the rules in Directive 2014/23/EU (rather than Directive 2009/81 on defence procurement).
Light-touch Regime
In Case C-715/23, a pharmacy challenged a decision to issue an authorisation to a rival to operate a pharmacy without publishing a concession notice. The Slovakian appeal court considered that the authorisation was the award of a concession, but had doubts as to whether the service was within scope of Directive 2014/23/EU and, more specifically, whether it was a non-economic service of general interest or a service of general economic interest.
Article 4(2) of the Directive provides that non-economic services of general interest fall outside the scope of the Directive. Article 19 provides that concessions for social and other specific services listed in Annex IV falling within the scope of the Directive are subject to certain obligations in the Directive (a lighter-touch regime, which nonetheless includes the requirement to publish a prior information notice of intention to award a concession).
In answer to a request for a preliminary ruling, the CJEU replied:
- Article 4(2) means that the activity of operating a pharmacy, the essential part of which consists of supply, for remuneration, of medicines for human use (whether or not subject to medical prescription), and in the provision of advice on the correct and safe use of those medicines, does not fall within the concept of "non-economic services of general interest", and
- Article 19 means that the activity of operating a pharmacy (as described above) falls within the concept of "social and other specific services" referred to in Article 19.
Marks for Rates of Pay
Spanish case C-210/24 concerns an award criterion in a procurement for home care services for families and/or persons in need. The contested award criterion, "increase in the total payroll cost" awarded marks for paying staff more than the rates in collective agreements in the sector. Even if the contract had triggered the threshold contract values in Directive 2014/24/EU, it would have been eligible for the light-touch regime applicable to the provision of social services.
Article 67(1) provides that contracting authorities are to base the award of public contracts on the "most economically advantageous tender", and Article 67(2) requires that this is identified on the basis of the price or cost, using a cost-effectiveness approach, and may include the best price-quality ratio, to be assessed on the basis of criteria, including qualitative, environmental and/or social aspects, linked to the subject matter of the public contract in question.
Advocate-General Norkus advises the CJEU to reply that Article 67 means that, in the case of a contract for social services to the person, (where the value of the contract is below the Directive threshold but the Member State has made Article 67 applicable to the contract in national law), Article 67 does not prevent an award criterion applied to determine the "most economically advantageous tender" which establishes that consideration must be given to the pay increases that the tenderer proposes to apply to the persons performing the contract (compared to the rates established by collective agreement), provided that the criterion complies with the principles of proportionality, equal treatment and non-discrimination (which is for the referring court to determine).
Procurement Notification as Inside Information
In Case C-229/24, the Swedish Supreme Court requested a preliminary ruling in an appeal by individuals convicted of selling financial instruments for which they were accused of having inside information. The inside information was an emailed decision by a contracting authority that a listed company, in which the individuals held shares, had been unsuccessful in a procurement competition.
To constitute "inside information", information must not have been "made public" for the purposes of the Market Abuse Regulation (EU) 596/2014. Advocate-General Kokott's recommended response includes that information is deemed to be "made public" where it is known by or accessible to a reasonable and normally diligent investor, taking into account the circumstances of the case and the relevant rules governing its disclosure, such as those applicable to public procurement.
UK
Where there is an option to clarify or exclude, clarify
In Working on Wellbeing Ltd t/a Optima Health v Secretary of State for Work and Pensions & Others [2025] EWCA Civ 127, the appellant was a healthcare provider which was party to a Framework Agreement with the respondents, which included the Department of Work and Pensions.
Several parts of the Invitation to Tender ("ITT") explained that unit prices in the bid were to exceed the Maximum Prices provided under the Framework Agreement. Evaluation criteria were weighted 70% for quality and 30% for price.
The appellant was disqualified from a call-off competition on the basis that three of the 190 pricing entries for individual service items exceeded the Maximum Prices. For two of the service items, the volume was zero. The appellant stated that the Department had made some changes to the three service items, without identifying the changes, in a Revised Pricing Submission.
The impact on the overall evaluation of the appellant's bid was that 0.02% was deducted from its price score, but there was no effect on overall scoring. Had the appellant's bid not been disqualified, it would have comfortably won the competition.
The Court of Appeal found that the Department should have awarded the contract to the appellant, for reasons summarised below.
- The ITT stated: "... The maximum contract value is governed by the CCS Framework ... any bids for any service line submitted to the Framework by invited bidders in excess of this will be discounted". This was not a mandatory exclusion provision. A RWIND tenderer would have understood it to mean that, if they mistakenly quoted prices in excess of the Maximum Prices, those erroneous prices would be reduced to the Framework Maximum Prices. At the very least, prices in excess of the Maximum Prices necessitated a request for clarification.
- The Department failed properly to exercise its discretion in respect of the obvious errors/ambiguities, or wrongly fettered that discretion. As a consequence, its decision to disqualify the appellant was irrational. There was no attempt at rational explanation to balance the importance of letting the contract as soon as possible with the downside of awarding the contract to an inferior bid because of three clerical errors. It was also disproportionate to disqualify the appellant in circumstances where it was easily the best bid overall, regardless of the errors, and where the errors had a de minimis impact on the tender evaluation. If there is one or more course of action open to the contracting authority, the cases say that the authority must take the option the least onerous to the bidder. Where the options are either to clarify or exclude, the contracting authority must clarify.
- The three line items amounted to obvious and material errors/ambiguities. The Department was obliged to seek clarification and could have done so without a breach of the duty of equal treatment. On the facts, the duty to seek clarification arose once it became apparent that the bid contained obvious mistakes and/or ambiguities which were highly material to the outcome of the competition and affected the proper evaluation of the tenders.
- The most probable answer to the request for clarification was that the erroneous prices should be reduced back to the Maximum Prices, and this would have been a permissible answer, which would not have amounted to a new bid or a substantial amendment to the existing bid.
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.
