Civil Engineering Reference
In-Depth Information
decisioninformationthatmustbeprovidedatthestartofthestandstillperiodto
seek further information about particular aspects of evaluation that are unclear or of
concern, without taking the expensive and difficult step of raising legal proceedings.
Equally, the incidence is increasing of contracting authorities electing to re-tender
a procurement which is subject to substantive or serious bidder complaints, thereby
reducing the risk of legal proceedings being raised.
2.17.1 The Remedies Directives
The current EU Directive (Directive 2007/66/EC) was adopted by the Council in
December 2007. The new Directive implemented two key changes: introduction of
an ineffectiveness remedy and new standstill obligations as explained below.
Each EU member state is required to ensure that effective remedies and means of
enforcement are available to suppliers, contractors and service providers who believe
that they have been harmed as a consequence of a breach of their respective public
procurement rules.
The rights of action laid down in the Regulations are available to any person who
sought to tender for a relevant contract and potentially are available to any economic
operator who had an interest in being engaged to perform the contract in question.
The complainant must be an economic operator from an EU country or from a
country which is a signatory to the GPA. See
Federal Security Services Ltd v Chief
ConstableforthePoliceServiceofNorthernIreland
(2009) for the position with regard
to Part B contracts.
2.17.2 Contracting authority duty to comply with the Regulations
The statutory rights and remedies for economic operators are founded upon regula-
tion 47(1) of the Regulations which provides that a contracting authority owes a duty
to 'economic operators' (including bidders, would-be bidders and interested parties),
to comply with the provisions of those Regulations and with any enforceable EU obli-
gation in respect of a public contract. For breach of that duty, economic operators
suffering loss may pursue statutory remedies of: (i) interim suspension of the procure-
ment procedure or decisions under it; (ii) setting aside of the procurement procedure
or decisions under it; and/or (iii) damages. See regulation 48(1), as well as an order of
contract ineffectiveness under regulation 49, as explained below.
2.17.3 What statutory remedies are provided?
Interim measures
The complainant may ask the court to issue an interim order, which suspends the
allegedly defective award or suspends the implementation of any decision or action
