Provision of Legal Services to the National Paediatric Hospital Development Board

Tender description

The NPHDB (the “Board”) entered into a contract with McCann FitzGerald LLP for Legal Services in connection with the New Children's Hospital in March 2018 (the “Contract”). The Contract was awarded following a mini- tender competition conducted pursuant to an OGP Framework Agreement for General legal Services (Lot 1) published on eTenders in August 2015. The Contract is for the duration of the construction phase of the New Children’s Hospital, which at the time of entering into the contract with McCann FitzGerald LLP was expected to take 50 months. However, the services of McCann FitzGerald LLP will be required by NPHDB to assist with legal matters beyond the official opening of the New Childrens Hospital. The Board is of the view that the Contract and tender documents for the competition made provision for or flagged in a sufficiently clear and precise manner that the term of the Contract would match the programme for delivery of the NCH including any prolonged period of construction. Lot 1: In March 2018, NPHDB entered into a contract with McCann FitzGerald LLP for Legal Services in connection with the New Children's Hospital (the “Contract”). The Contract is for the duration of the construction phase of the New Children’s Hospital, which at the time of entering into the contract with McCann FitzGerald LLP was expected to take 50 months. However, the services of McCann FitzGerald LLP will be required by NPHDB to assist with legal matters beyond the official opening of the New Childrens Hospital. The Board is of the view that the extension of the Contract to match the programme for the delivery of the New Children’s Hospital (including any extended/prolonged period of construction) is permitted under the principle of the derogation at Regulation 72(1)(a) of the European Union (Award of Public Authority Contracts) Regulations 2016 (“Regulations”) on the basis that this was provided for in the initial procurement documents in clear, precise and unequivocal review clauses. This is based on the position that the Board noted in the SRFT that “the legal services that maybe required during the construction phase of the project” cover “Services during the Phase B construction works (incorporating remaining Phase A works) on the St James’s site through to building commissioning and handover” and “Services during the construction of Tallaght Out-Patient and Urgent Care centre through to building commissioning and handover”. Additionally a key part of the scope was the provision of legal services as may be required to establish post-substantial completion systems maintenance and SLA arrangement for the hospital “post construction” (a service which can only be provided once the development is completed). As such, it is NPHDB’s view that the continuation of drawdown of services under the Contract is permissible in accordance with the principle of Regulation 72(1)(a) of European Union (Award of Public Authority Contracts) Regulations 2016 on the basis that it was clearly and sufficiently provided for in some of the tender documents and/or on the exemption from the EU procurement regulations in Statutory Instrument 284 of 2016, Article 10(1)(d): (i) legal representation of a client by a lawyer within the meaning of Article 1 of Directive 77/249/EEC.