Procurement in a nutshell – the remedies regime
22nd May, 2015
In this Procurement in a Nutshell update, we will be looking at the remedies regime under the Public Contracts Regulations 2015.
The regulations are available in full here.
What’s new?
Not much! The 2007 Remedies Directive introduced the current remedies regime to public procurement. Under the subsequent 2014 Directive and the Public Contracts Regulations 2015 (the UK’s implementing legislation) the only change to the remedies regime is that they are incorporated into the main body of the regulations, namely at Part 3.
Available remedies still include where a claim is issued, there is an automatic suspension of the award of the contract. The Contracting Authority (CA) cannot enter into the contract until either the court lifts the suspension or the proceedings are determined, discontinued or otherwise disposed of.
If the contract has not yet been entered into, the Court may do one or more of the following:
- set aside the decision to award the contract
- order the CA to amend any document
- award damages to an economic operator who has suffered loss or damage.
If the contract has already been entered into, the Court:
- must, if any of the grounds for ineffectiveness in regulation 99 applies, make a declaration of ineffectiveness (unless it is prohibited from doing so by regulation 100)
- must Impose penalties (where required to do so by regulation 102)
- may award damages to an economic operator who has suffered loss or damage
- must not order any other remedies
Why is it important?
Although the remedies currently remain unchanged, CAs and bidders should familiarise themselves with the regime to understand the potential consequences of a flawed procurement procedure.
Also, as we reported in our previous nutshell, the EU Commission is currently consulting on the effectiveness of the Remedies Directive and therefore change may soon be on the horizon!
How can I find out more?
If you have any queries on the issues raised or on any aspect of procurement, please contact us via our procurement hotline on 0191 204 4464.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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