Half of notices placed on OJEU contain errors that could prompt a legal challenge, a study by Achilles suggests.
Achilles helps businesses manage potential risks in their supply chains to support people, planet and profit. It also has an EU services team which provides EU training and consultancy, as well as THEMiS – an on-line knowledge bank for regulated procurement.
This team looked at a random sample of OJEU notices submitted by a range of public sector and utility organisations. These included local authorities, NHS trusts, housing associations, police authorities, universities and utility companies.
Among the findings were:
50% of notices did not apply minimum timescales or expected tenderers, as set out in EU regulations, which could leave a buyer open to legal challenge.
20% of notices were sent under the wrong categorisation, for example confusing services with supplies. This could also leave a buyer open to legal challenge.
15% per cent of organisations failed to specify that they require responses to be in English, which means they are then obliged to assess responses in any recognised EU language
20% of notices were completed incorrectly, in respect of providing options for the valuation or duration fields.
Last year, Achilles and the University of Nottingham carried out another study, which looked at supplier challenges brought under the EU procurement regime over a 20-year period. This research indicated a sharp rise in the number of supplier challenges going to court.*
Glenn Fletcher, Director of EU Procurement from Achilles, said: “Our latest research suggests that due to the complexity of EU regulations, there is still a level of misunderstanding about OJEU notices. Getting this wrong could lead to lengthy court challenges, legal costs and damages, wasted time and potentially contracts being set-aside, deemed ineffective or suspended.
“With budgets being tightly squeezed and suppliers competing for fewer contracts, we are already seeing a rise in challenges. Buyers must be absolutely vigilant in adhering to EU rules.
“Knowledge is power and as a leader in supply chain management, we would advise anyone operating in a regulated sector to prioritise training including how to complete OJEU notices. We also provide access to databases of audited suppliers across EU regulated industries, for utilities, to help streamline these processes for buyers and suppliers.”
At the same time, The European Commission is seeking to streamline, simplify and modernise procurement directives. The aim is to promote innovation, improve carbon efficiencies and support small firms while ensuring European markets are kept open.
Achilles, in partnership with Sue Arrowsmith, Professor of Law at the University of Nottingham, has organised a conference aimed at explaining upcoming changes to EU public and utility contract regulations.