Public Procurement Challenges in Northern Ireland

The Hon Mr Justice McCloskey

November 2012

A paper presented to the Society of Construction Law at a meeting in Belfast on 23rd October 2012

This paper looks, in some detail, at the 2007 Remedies Directive and the 2009 Regulations which transposed it into law in the UK: the intent was to improve the effectiveness of review procedures concerning the award of public contracts by enhancing the legal review procedures and remedies available for breach. In particular, it looks at the flurry of litigation in Northern Ireland in May/June 2011 resulting from the new standstill provisions, which threw up a series of interesting substantive issues of law and significant issues of case management. Finally, the paper draws attention to some of the developments, recent and pending, in the field of procurement law with reference to cases in Northern Ireland, England and Wales and the EU.

Preface - I The Standstill Period - II Managing the Litigation and the Over-riding Objective - III Interim Injunctive Orders - IV Some Particular Issues of Substantive Law - The function of the court - Regulation 26: Requiring further information - Organic agriculture and fair trade products - Clear selection criteria and equality of treatment - V Third Party Challenges - VI The Parties: Plights and Dilemmas - VII Some Recent and Imminent Developments - The time limit for proceedings - Regulation 47H: Terminating the automatic contract execution suspension - Quality of personnel as an award criterion - New public procurement legislative proposals.

The Honourable Mr Justice Bernard McCloskey is a judge of the Court of Judicature of Northern Ireland.

Text and Appendix 24 pages