News
New rights for tenderers to challenge procurement awards
18 December 2009
On 20 December 2009, the Public Contracts (Amendment) Regulations 2009 (“Regulations”) come into force. The Regulations implement the Remedies Directive (2007/66/EC).
The purpose of the Regulations is to improve the effectiveness of review procedures concerning the award of public contracts. The amendments enhance the legal review procedures and remedies available for breach of the public procurement rules.
The key changes are as follows:
- Contracting authorities (e.g. government departments, local authorities, local government authorities) will be obliged to provide full debrief information with their Alcatel standstill letters. Tenderers will no longer be required to request debrief information within 48 hours of receiving the standstill letter.
- The contract award procedure will be suspended automatically when legal proceedings are issued against the contracting authority. Currently, tenderers must obtain an injunction to prevent the contract award.
- The Regulations introduce the concept of ineffectiveness. In certain circumstances, a court will be able to declare that a contract is ineffective (i.e. void), as a result of flaws in the procurement process. Currently, a tenderer can only bring a claim for damages once the contract has been awarded.
- New civil financial penalties for contracting authorities that operate defective procurement processes.
Tenderers should note that the Regulations will only apply to procurements first advertised on or after 20 December 2009. Procurements that were advertised prior to 20 December 2009 will continue to be subject to the existing standstill, debrief and remedies requirements.
Our view is that the Regulations will provide tenderers with additional grounds for challenging procurement awards both prior to and after an award. However, it might also mean that where a tenderer has been awarded a contract, other unsuccessful tenderers might seek to challenge that award.
On 28 January 2009, we are hosting a free seminar providing practical tips for legal advisors and commercial directors, in construction firms, on how to challenge public tender awards. Further details are available on our events page. If you would like to reserve a place, please email Gina Ludden at g.ludden@beale-law.com.
For further information on procurement law, or challenging public tender awards, please contact James Hutchinson at j.hutchinson@beale-law.com.