EU

Foreign Subsidies Regulation

The Commission announced two in-depth investigations in a public procurement process pursuant to its powers under the Foreign Subsidies Regulation. Under the Regulation, companies must notify their tenders in the EU when the estimated value of the contract exceeds €250 million, and when the company was granted at least €4 million in foreign financial contributions from a third country in the three years before the notification. The investigations concern a process for the design, construction and operation of a photovoltaic park in Romania. Further information is available here.

Economic Operators outside the EU

C-652/22 concerns the award of a contract to upgrade railway infrastructure in Croatia. When an unsuccessful bidder raised a challenge, the State Commission for the Supervision of Public Procurement Procedures set the contract award aside, finding that the contracting authority had failed to substantiate its finding that the preferred bidder satisfied the technical and professional ability requirement.

The awarding authority requested the preferred bidder to provide further information. The preferred bidder provided information on works it had mentioned in its tender and additional works it had not mentioned. The works initially mentioned in the tender would not have satisfied the qualification criteria. The contracting authority again awarded the contract to the preferred bidder. The Croatian Court referred several questions to the CJEU.

Advocate General Collins now advises the Court to rule that the preliminary question is inadmissible. The unsuccessful bidder is a company established in Turkey, which is not a party to the WTO Agreement on Government Procurement or any other international agreement on the award of public contracts by which the EU is bound. The unsuccessful bidder is not therefore entitled to participate in a public contract award procedure governed by the Utilities Directive or to rely on the Directive's provisions.

If the Court decides that the preliminary reference is admissible, Advocate General Collins considers that Article 76 of Directive 2014/25, read with the principle of equal treatment enshrined in Article 36, prevents a contracting authority from requesting new documents from a tenderer relating to its technical and professional ability by reference to works not mentioned in the original tender, in circumstances where the initial award decision had been set aside and the matter referred back for re-evaluation. The Opinion is available here and a press release is here.

IRELAND

New Green Strategy and Action Plan

The Government's Buying Greener: Green Public Procurement Strategy and Action Plan 2024-2027 is available. It replaces the previous national Green Public Procurement policy 'Green Tenders'. Further information is available here.

Office of Government Procurement

The OGP has published a FAQs for the Price Variation Workbooks (as well as a consolidated errata note for the workbooks) to assist with the operation of new price variation clauses in the Public Works Contracts. Further information is available here.

UK

Public Procurement Legislation

  • Procurement Regulations 2024 have been laid before the UK Parliament and must be approved by it before entering into force. They will provide for the more detailed implementation of various aspects of the Public Procurement Act 2023, which provides for the new public procurement regime in the UK.
  • Procurement Act 2023 (Commencement No 2) Regulations 2024 bring into force the provisions of the Public Procurement Act 2023 listed here. The UK Government has indicated that new regime will likely fully go-live in October 2024 and that a full set of guidance should be available by June 2024.

Public Procurement Notices

The Cabinet Office published the following new public procurement notices:

  • PPN 01/24 which provides an optional standard carbon reduction contract schedule that can be included in government contracts,
  • PPN 02/24 on improving transparency of AI use in public procurement, and
  • PPN 03/24 which provides a revised Standard Selection Questionnaire.

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.