Public Procurement - Horizon Scanner: Infrastructure, Construction, Energy, March 2024

• Published date: 22 March 2024
• Subject Matter: Government, Public Sector, Government Contracts, Procurement & PPP
• Law Firm: Arthur Cox
• Author: Arthur Cox

EU

Foreign Subsidies Regulation

The Commission is conducting a first in-depth investigation 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.

This investigation follows notification by a subsidiary of a Chinese state-owned train manufacturer in the context of a procurement process in Bulgaria. The Commission will assess whether the subsidy means the company can submit an unduly advantageous offer, thus causing a distortion in the internal market. The Commission may then: (i) accept commitments by the company if they remedy the distortion, (ii) prohibit the award of the contract, or (iii) issue a no-objection decision. Further information is available here.

Brexit

The Trade Specialised Committee on Public Procurement met for a third time. Minutes indicate the focus was on exchanging updates on latest developments in EU and UK and addressing UK queries about alignment of cyber security certification requirements with international procurement commitments.

IRELAND

Correspondence did not constitute a Standstill Letter

Killaree Lighting Services Limited (applicant) v Mayo County Council (respondent) and Electric Skyline Limited (notice party) [2024] IEHC 79 concerned the award of a contract for works and services for public lighting for six local authorities.

In August 2020, the respondent raised concerns that the applicant's tender included abnormally low amounts. There were several exchanges of correspondence ending in a letter to the applicant in October 2020 eliminating it from the process on the basis that its tender included abnormally low amounts. It continued that, following identification of the successful tenderer and observance of the standstill period, the name of the winner would be published in a contract award notice. On the same day, the notice party was notified it was successful. The contract was signed in late October 2020, and the contract award notice was published on 3 November 2020.

There were five main grounds of challenge. The applicant partially succeeded on the first ground and the remainder were dismissed.

1. Standstill letter: The Court agreed with the applicant that the October 2020 letter did not...