Letter of Acceptance and Contract Formation in Irish Public Procurement, Slides of Construction

Download Letter of Acceptance and Contract Formation in Irish Public Procurement and more Slides Construction in PDF only on Docsity! Employer Instructions Letter of Acceptance Introduction Once a Letter of Acceptance is issued1 to the successful tenderer, a binding contract is created with that tenderer and the particular procurement procedure2 is brought to a close. If the value of a contract is above the EU threshold the rules in Article 35(4) of Directive 2004/18/EC, as implemented into Irish law by Regulation 41(1) of SI No 329 of 2006 (regarding the publication of an award notice in the OJEU within 48 days of issue of Letter of Acceptance) apply. If the contract value is below the EU threshold there is no requirement to publish an award notice. Up to contract award Automatic suspension For contracts above the EU threshold, the standstill period referred to in Regulation 5(4) of SI No 130 of 2010 applies and a contract cannot be concluded until the expiry of that period. The Letter of Acceptance should therefore not be issued until after the standstill period has expired as, otherwise, the contract may be found to be ineffective. Furthermore, a contract cannot be concluded if, prior to conclusion of the contract, an unsuccessful candidate or tenderer applies to the Court for a review of the Employer’s decision about the award of the contract. Where such an application is made, the Employer is automatically prohibited from concluding the contract until either (i) the Court determines the matter; (ii) the Court gives the contracting authority leave to lift the suspension; or (iii) the case is discontinued. Under Regulation 8(4) of SI No 130 of 2010, the unsuccessful candidate or tenderer must notify the contracting authority in writing, in advance of initiating proceedings, of (i) the alleged infringement (ii) its intention to make a Court application and (iii) the matters that, in its opinion, constitute the infringement. Applicant’s notice of intent Where a candidate or tenderer has served a notice of its intention to make a Court application, the Employer will only know if the intent has been carried through when a copy of the originating motion arrives, which may be some time after the standstill period has expired. Where the Employer has received a notice of intent but not a copy of the originating motion and is deciding on how to proceed it should check with the Central Office of the High Court, before creating the contract, to find out if the originating motion has been lodged. Continued on the next page 1 Please note that this only applies to PW-CF1-5 and that in the case of PW-CF6 the Tender Acceptance on the back of the Form of Tender (FTS6) should be used. 2 The open; restricted; competitive dialogue or the negotiated procedure MF1.4 26/11/2010 1 Letter of Acceptance Continued Continued on the next page MF1.4 26/11/2010 Ineffectivenes s Where the Employer has made an award during the standstill period, or has allowed the period to elapse but has then proceeded with an award despite the making of an application to Court by a candidate or tenderer prior to the conclusion of the contract, the contract so formed may be found to be ineffective. The Employer’s liability to the party awarded the contract is set out in Forms of Tender FTS 1 to FTS 5 for contracts PW-CF1 to PW-CF5 which state “We agree that if any contract formed by acceptance of this Tender is determined void, voidable, unenforceable, or ineffective, any damages for which you may be liable will not exceed the amount that would have been payable under clause 12.6 of the conditions of the contract on termination under clause 12.5 of the Conditions of Contract.” Documents that form the contract All the documents that form the contract are to be listed in the Letter of Acceptance when issued. These are: 1. Letter of Acceptance See Model Form MF 1.4. 2. The Agreement One of the Agreements for contracts PW-CF1 to PW-CF5. The signing and sealing (if required) of the Agreement normally takes place after the Letter of Acceptance is issued and the execution should be in accordance with Particulars to section 10.5 of ITTW1 and ITTW2. 3. The Conditions One of the following documents: • PW-CF1 Public Works Contract for Building Work Designed by the Employer • PW-CF2 Public Works Contract for Civil Engineering Work Designed by the Employer • PW-CF3 Public Works Contract for Building Work Contractor Design • PW-CF4 Public Works Contract for Civil Engineering Work Contractor Design • PW-CF5 Public Works Contract for Minor Building and Civil Engineering Work Designed by the Employer. 4. The Form of Tender and Schedule One of FTS 1 to FTS 5 documents, fully completed by Employer and successful tenderer. If the Particulars in ITTW1 or ITTW2 stated that the Agreement is to be sealed, then the Particulars to section 5.14 of ITTW1 or 5.12 of ITTW2 should also state that the Form of Tender is to be sealed at the time of submission. The Form of Tender (sealed if required), together with the completed Schedule (Parts 1 and 2), should be attached to the Letter of 2