Civil Engineering Reference
In-Depth Information
authority must follow one of the permitted award procedures outlined above to be
used by contracting authorities in the procurement of a public contract.
Framework agreements can, if used in appropriate circumstances, have consider-
able advantages. If a contracting authority is likely to have a number of separate but
similar contract requirements over a period, a framework agreement avoids the need
for repeated procurement, or, in the case of multi-supplier frameworks, will limit pro-
curements to 'mini-competitions' based on terms and conditions already set up under
the framework agreement, with resultant savings in cost and time.
On the other hand, there are also a number of potential disadvantages to using
framework agreements; they can complicate the award of 'straightforward' contracts
and can, if the legal procurement requirements are not met, result in lengthy and
costly litigation by parties concerned over 'foreclosure' of the market. Two Northern
Ireland cases highlighted the potential pitfalls in procuring framework agreements.
In
McLaughlin & Harvey Ltd v Department of Finance & Personnel
(2008), the con-
tracting authority was held to be in breach of the Regulations for failing to disclose
39 sub-criteria used in assessing bids for its framework and the weighting to be given
to each of the criteria in the assessment. In
Henry Brothers (Magherafelt) Ltd & Ors v
Department of Education for Northern Ireland
(2008), the contracting authority was
heldtohaveerredinthepricingmechanismusedtoassessthebids.Inboththese
cases the court set aside the framework agreements entered into.
It also needs to be borne in mind that, though mini-competitions for contracts
called-off under the framework are not subject to the full public procurement regime
under the Regulations, in particular, the publication of an OJEU notice, certain cri-
teria set out in regulation 19 must still be met and the overriding obligations set
out in regulation 4(3) of treating economic operators equally and without discrim-
ination and acting in a transparent and proportionate manner must be followed. In
addition, the award criteria for each mini-competition must follow those set out in
the framework agreement (which in turn means that these need to form part of the
contract documents in the original tender process for the framework), see regulation
19(9)(d). The terms and conditions for the call-off contracts also need to be included
as part of the original framework agreement and there are limitations to the extent to
which these can be modified in the subsequent mini-competitions, since regulation
19(4) provides that the terms of the call-off contract awarded pursuant to a frame-
work must not be 'substantially amended' from those laid down in the framework
agreement. See also regulation 19(8), which states that any mini-competition must
be 'on the basis of the same or, if necessary, more precisely formulated terms, and
where appropriate other terms referred to in the contract documents based on the
framework agreement'.
2.17 Remedies against contracting authorities (bidder grievances
and complaints)
The number of formal complaints and successful court actions concerning claimed
breaches of EU public procurement law has increased since reforms of the remedies
available to aggrieved economic operators took effect. This section explains the legal
position in some detail. Increasingly contractors are taking advantage of the award
