Remedies Directive Loophole – Courts Lift Suspensions for Contract
Posted by Hailey Thomson on March 28, 2011
A colleague of mine recently sent me an article about authorities who have been permitted to proceed with contracts after being challenged by a supplier. Now, if you remember one of my more recent posts, A Slap on The Wrist for Authorities I discussed (in short) how more authorities are being pulled up for their actions when awarding contracts unfairly and what you could do as a supplier, I believe my exact words were, “just by making a formal complaint you can put a hiatus on the contract award”. Imagine my surprise when I read the article about three cases where the court lifted the suspension and allowed the contract to continue. Apparently the new Remedies Directive has a tiny little loophole, the same law that allows suppliers to put the brakes on a contract award allows authorities to continue the contract until something more concrete is settled in court. Now this won’t be the case for every authority, they must have to merit the circumstances, but it might put some suppliers off the idea of challenging authorities in court. The courts have suggested awarding damages may be the best way to solve the issue when dealing with brazen suppliers willing to challenge the system. The first case was for cleaning services in a college, the college fought that they needed the cleaning services to continue classes, therefore the college was permitted to carry on with the chosen supplier until an agreement was reached in court (i.e. damages). The second case was for an NHS trust which obviously needed to continue business as usual as they are dealing with people’s health, so again the NHS trust were permitted to use the chosen supplier. The third case was regarding landmine clearance in Cambodia…… need I say more?
So what does this mean for suppliers? Will any challenged authority be quoting these cases in court? If the courts feel that damages will be the best path to take when these cases arise, is this really good value for public money? I feel this loophole goes against the power the authorities were kindly given. It goes back to the same old idealism, be transparent and do it right in the first place. If any of our readers are running into trouble with Authorities, let us hear your story!