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Procurement Update

Procurement Pulse June 2017

26 June 2017
by Sharon Fitzgerald, Gavin Deeprose, Louise Huson

Procurement legislation provides certain guidance on how to run an impartial procurement process - including minimum time limits for submitting expressions of interest or bid documentation, prescribed criteria for selecting bidders, restricting negotiation to clarification of incomplete or erroneous bids, award criteria and more focussed direction for complex procedures such as competitive dialogue. Otherwise a contracting authority has the discretion to set out its own procedural rules in the procurement documentation. Even with bespoke rules in place, it is impossible to foresee every scenario which might occur, and when that is the case, a contracting authority must ensure that its interaction with bidders complies with the general principles of non-discrimination, equal treatment and proportionality set out in the Treaty on the Functioning of the European Union (TFEU).

Case law guidance is invaluable when faced with that judgement call. Can a bidder submit proof of previous experience where that experience derived from work it carried out in consortium with others? Can erroneous samples included in bid documents be resubmitted? Can an authority introduce weightings for published sub-criteria, when bids have already been submitted? Our selected case law this month presents Advocate General and European Court analysis of how TFEU general principles have been applied in practice.

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