EU Procurement Law Conference – 8th October 2010

The Edinburgh Centre for Commercial Law were delighted to host an EU Procurement Law Conference in conjunction with Burness LLP on the 8th of October 2010. The conference was extremely well attended with well in excess of 100 delegates, ranging from local authorities, the NHS, Universities, construction and development companies, law firms and many other organisations. 

Although EU Procurement law has been with us in some form since the 1970s, it is only in more recent years that it has received the priority it demands. The last two years or so have seen a cascade of judgments that have answered old questions and raised new ones. The conference took a look at where we are and how apparently conflicting practical and legal requirements might be resolved.

Sandra Cassells, partner at Burness LLP hosted the conference throughout the entire day. The keynote address was delivered by Professor Sir David Edward (formerly Salvesen Professor of European Institutions, University of Edinburgh; Judge of the Court of Justice of the European Communities, 1992-2004) who reminded delegates of the importance of reflecting upon the principles underpinning the procurement Directives, e.g. the provisions of the European Treaty on which the Directives are based ought to be borne in mind and applied as an aid to their interpretation.

Mr. Akos Nagy summarised the position relating to the applicability of the law on procurement in relation to shared services in the public sector and gave some insights into the thinking of the Directorate-General for Internal Market and Services of the European Commission on public sector co-operation. This covers the situation where public authorities co-operate with each other in the provision of services, e.g. through pooling their resources or establishing central purchasing arrangements.

Mr. Nagy's presentation was followed by Iain Mitchell QC who was lead counsel in the case of Sidey Ltd. v Clackmannanshire Council and Pyramid Joinery & Construction Ltd. [2010] CSIH 37; 2010 S.L.T. 607. Mr. Mitchell discussed the case in detail and the threshold criteria in procurement law. In particular, he reflected upon his experience in acting for Pyramid and the lessons which could be learnt.

Dr. Aris Georgopoulos, lecturer in EU and public law and Head of the Research Unit on Defence and Strategic Procurement at the University of Nottingham discussed the important distinction between selection and award criteria in public procurement. In particular, Dr Georgopoulos dissected the decision of the European Court of Justice in Lianikis and its impact on local authorities taking into account a tenderers' experience, manpower and equipment or their ability to perform the contract by the anticipated deadline as award criteria. The fundamental premise of Dr Georgopoulos's presentation was that it was not necessarily the case that Lianikis could be interpreted as having firmly closed the door shut on deploying the above as award criteria. Dr Georgopoulos based this contention on (1) common sense, (2) Recital 46 of Directive 2004/18 on public procurement and (3) the factual and regulatory background to the Lianikis decision. As a Greek national, Dr Georgopoulos was particularly well-placed to offer some unique insights into this Greek case!

In the early afternoon, Mr. Declan Magee, partner in the law firm Carson McDowell gave a fascinating presentation on the procurement experience in Northern Ireland. Mr. Magee explored the recent cases from the Belfast High Court and discussed the fall-out from recent disputes between the public and private sector.

Finally, Graeme Palmer, associate at Burness LLP gave an account of the law which applies where the terms of existing contracts betwen local authorities and successful private contractors are amended. In particular, the central question was whether such alterations will inevitably necessitate a new award. Mr. Palmer's presentation concentrated on the principles in the Public Contracts (Scotland) Regulations 2006 and the case law of the European Court of Justice.

The Edinburgh Centre for Commercial Law was particularly delighted to have hosted an event at the University of Edinburgh which brought academics, legal practitioners and the commercial community from all walks of life together to discuss the practical legal issues which arise from the law of public procurement. Such an event falls squarely within the objectives of the Centre. The topics discussed by the presenters were very interesting and stimulated questions, discussion and debate amongst the delegates. The Centre would particularly like to thank Burness LLP for acting as co-sponsors of the event and Blackwells the book shop.

David Cabrelli

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