This blog covers the remedies directive for the public sector and when/how you can raise a challenge against a contracting authority.
The EU Remedies Directive was created in 2007 and transposed into UK law with the updated Public Contracts Regulations in 2009. The Directive brought in two very clear and important changes for suppliers to be aware of which were:
- a right to challenge the buyer if a contract is entered into before the compulsory standstill period has ended (standstill being the minimum 10 day period where buyers notify all bidders of the intended outcome before contracts can begin); and
- an automatic right to challenge an award decision and have the contract cancelled or modified if there has been any breach of the wider procurement rules.
In addition, the 2009 Regulations introduced a number of other changes, including: Continue reading “How do you challenge a buyer when you feel the procurement is flawed?”
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!
On Sunday the Remedies Directive (2007/66/EC) was implemented in UK legislation. In England, Wales and Northern Ireland, the Office of Government Commerce (OGC) had drafted ‘The Public Contracts (Amendment) Regulations 2009’ (SI 2009/2992). While in Scotland the Scottish Procurement Directorate (SPD) had drafted The Public Contracts and Utilities Contracts (Scotland) Amendment Regulations 2009 (SSI 2009/428). Although both sets of regulations are implementing the same European Directive there are some significant differences in the detail, although in this article I’ll only concentrate on the main effects.
Continue reading “Remedies – Public sector buyers beware!”