Tendering For Care

Health, Education and Social Care are "Part B" services under the Directive. Some purchasers believe that they can opt out of the advertising these services. The Commission recently won a case in the ECJ against Ireland whenit argued that to award a contract without competition is a breach of the Treaty principles.

The Court's case-law clearly holds that the Treaty provisions on the freedoms of establishment and service impose on member States in respect of the award of public contracts which fall outside the scope of the Directives. With this in mind the Commission has successfully submitted that Community Law requires an appropriate level of advertising despite a contract falling outside the scope of the Directive. Just because a contract whose value is above the financial threshold and falls under the Part B sevices provisions of the Directive this is not sufficient for the purchaser to fail to advertised.

In a further judgement against ireland over a similar but separate complaint by the Commission. The view in this case is that Ireland has failed to comply with its obligations under the Treaty through failure to advertise. As advertising did not take place, the contract was not subject to competition. This has led to a breach of Articles 43 and 49 of the Treaty in regard to the free movement rules, despite the service being a Part B service.

These judgements mean that purchasing Authorities must be careful to advertise contracts widely and to do all in their power to avoid discrimination in their procurement procedures.

ECJ case law now confirms that the treaty principle of non discrimination implies an obligation of transparency on contracting authorities. The ECJ has indicated a need to ensure that there is "a sufficient degree of advertising to enable the market to be opened up to competition and the impartiality of the procurement process to be be reviewed "