The past twelve months has seen a large increase in the volume of procurement challenges coming before the Irish Courts. Below, we look at what is driving these and some key issues arising from recent cases.
BITING THE HAND THAT FEEDS?
During the financial crisis, service providers were faced with a trade off in relation to public tenders: needing to win any tenders that were published (given there was a drastic reduction in published tenders generally during the period) and not wanting to bite the hand that was feeding them (the Government) at the time. On balance, service providers appeared to have been more concerned with not biting the hand that fed them. The cases that did come before the Courts were often from incumbent providers who had been unsuccessful in tender processes for large contracts.
More recently there has been a marked change in the behaviour of bidders. They are:
Less reliant on the public sector for business; Being selective about what they are tendering for; and Much more aware of, and willing to enforce, their legal rights. This combination of factors means bidders do expect tender processes to be run fully in compliance with public procurement law and are prepared to hold the public sector to account in this respect. We expect this trend to continue.
ARE YOU IN THE FRAME(WORK)?
Centralising common purchasing across the public sector for a small country such as Ireland makes obvious sense. Large procurers such as the Office of Government Procurement have and continue to run a large number of framework tenders. Given these frameworks tend to result in multi annual appointments, getting onto the framework can make or break a business. In recent years, there have been a number of proceedings issued in respect of the appointment to frameworks, such as Homecare Plus and Others v Health Service Executive, Copymoore Ltd v The Commissioner for Public Works and Gaswise Limited v Dublin City Council. Given the number of frameworks being put in place, we expect to see the trend of cases in relation to frameworks to continue. We also expect there to be a rise in cases which seek a review of the manner in which contracts are awarded off frameworks.
THE SUSPENSE IS (NOT) KILLING ME
When a bidder is unhappy about a tender outcome, generally it is because they think they ought to have won. When challenging the tender process, they want to be appointed as the winner instead, or to have the tender process set aside. The Remedies...