Public Procurement

The Practice

Arthur Cox has a widely acclaimed and leading Public Procurement practice with its team having a wealth of knowledge and experience of Public Procurement law and practice. We offer an end to end procurement service from devising procurement strategies to contract administration and management.  Our approach is to allow public bodies and utilities to use public procurement to deliver the outcomes they want.  For bidders we offer detailed understanding on analysis of up to the minute developments in procurement law and seek to promote bidder rights as well as assisting in bidder tender strategies.  We advise clients in relation to the bringing and/or defending of procurement challenges and work closely with our Litigation and Dispute Resolution colleagues in this area.

Expertise

Legal services offered include the following:

  • developing Public Procurement law strategies and planning tender processes using measures such as market soundings, e-auctions, frameworks, lots and dynamic purchasing systems to optimise competition and tender outcomes;
  • advising on the appropriate procurement procedure (open, restricted, competitive dialogue, negotiated procedure, with or without prior call for competition) and preparing and/or reviewing documentation generated by contracting authorities as part of procurement processes, including notices published in the OJEU and/or eTenders (Ireland), tender information packages and tender documentation;
  • advising on below threshold procurements, contracts subject to “light touch” regulation and concession contracts;
  • advising on available exemptions from the application of public procurement rules such as urgency and contracts between public sector entities;
  • monitoring the conduct of procurement processes and assisting with tender evaluation;
  • advising on transparency and disclosure obligations and robust standstill letters and procedures;
  • advising on information entitlements under Public Procurement Law and other legislation including the Freedom of Information Acts, the EC (Access to Information on the Environment) Regulations and the Data Protection Acts;
  • developing variations mechanisms which are compatible with the new regime applicable to variations to contracts post contract award;
  • framing detailed submissions to the European Commission on the position of entities under Public Procurement Law;
  • audit of procurement procedures including tender documentation to ensure compliance with Public Procurement laws; and
  • in conjunction with our Litigation and Dispute Resolution Group, advising on remedies (such as monetary damages, injunction, discovery and interrogations) including in the Courts of Ireland and before the EU institutions.

Experience

Our clients include a wide range of government bodies, public bodies, entities in the utilities sector as well as bidders to a wide variety of public sector clients. We have also advised on many of the major procurement cases to come before the Irish courts in recent years.

Recent experience includes advising:

  • Sanofi Pasteur on its procurement challenge against the HSE
  • the preferred bidder (as notice party) on the defence to two challenges to the award of the M50 tolling concession contract
  • Brambles Cafés on its challenge to Dun Laoghaire Rathdown County Council on the award of concession contracts
  • daa plc on the successful procurement of the second runway at Dublin Airport which included an innovative pre-construction services agreement entered into by all shortlisted bidders
  • Irish Rail on procuring its new National Train Control Centre using NEC forms of contract
  • Trinity College Dublin on the procurement of its new Business School using Public Works Contracts
  • Curragh Racecourse on the successful procurement of its new stand using the ‘special measures’ (nominated sub-contractor type structure) under the Public Works Contract
  • awarding authorities such as daa plc and Trinity College on the award of concessions under the Concessions Directive
  • BAM PPP PGGM in respect of its procurement challenge against the NTMA in relation to the Grangegorman PPP Project.  This included advising on the Court of Appeal application in respect of the order for discovery granted in favour of BAM PPP PGGM and an application for the lifting of the automatic suspension under the Remedies Regulations
  • HSE, the largest procurer in the State on procurement matters generally.  Innovative procurements include the National Design Team Framework which comprised the appointment of more than 60 providers across more than 32 lots on a multi-disciplinary framework basis; and “light touch” procurements for a variety of healthcare services such as renal dialysis, Enhanced Homecare, orthopaedics and clinical devices
  • Trinity College Dublin on a variety of procurements including cloud computing, financial services, service concessions and capital projects
  • daa plc on a number of innovative procurements such as its Fuel Farm project, the runway refurbishment project and its Dublin Airport Central capital development programme
  • Applegreen plc and Tedcastles Oil Products on its procurement challenge against Transport Infrastructure Ireland in respect of the Motorway Service Areas Tranche 2 PPP Projects (settled)
  • HSE in the successful defence of a procurement challenge from Baxter Healthcare
  • HSE in the successful defence of a procurement challenge from Fresenius Ireland
  • daa plc on the defence of a procurement challenge brought by OCS including the first application for the lifting of an automatic suspension in Ireland.  This case resulted in the introduction of S.I. No. 192/2015 – European Communities (Public Authorities Contracts) (Review Procedures) (Amendment) Regulations 2015 and S.I. No. 193/2015 – European Communities (Award of Contracts by Utility Undertakings) (Review Procedures) (Amendment) Regulations 2015.
  • Transport Infrastructure Ireland on its successful defence to the procurement challenge brought by Somague to the Luas Cross City Rail Project
  • Covanta in respect of procurement and state aid issues arising in connection with the Dublin Waste to Energy PPP Project
  • windfarm operators on the applicability of procurement rules
  • on production of a template suite of procurement documents for Radio Teilifís Éireann (the State broadcaster)
  • on production of a template suite of procurement documents for An Post