Civil Engineering Reference
In-Depth Information
The court has discretion not to grant a remedy of ineffectiveness even if ineffective-
ness has been established. Regulation 48(2) provides that in any interim proceedings
under regulations 47-50 the court may decide not to grant an interim order when
thenegativeconsequencesofsuchanorderarelikelytooutweighthebeneits,having
regard to the following considerations:
(a) that decisions taken by a contracting authority must be reviewed effectively
and, in particular, as rapidly as possible;
(b) the probable consequences of an interim order for all interests likely to be
harmed; and
(c) the public interest.
If a court decides to grant a declaration of ineffectiveness, it may shorten the duration
of the awarded contract and/or award a civil financial penalty against the contract-
ing authority. Regulation 48(3) states that where the court is satisfied that regulation
49(7)(a) applies but the second ground for ineffectiveness is not otherwise met (i.e.
the other pre-conditions for ineffectiveness under paragraphs (b), (c) and (d) of reg-
ulation 49(7)), it must order:
•
the contracting authority to pay a financial penalty to the Scottish Ministers; or
•
where the contract in relation to which the breach occurred has been entered into,
or the framework agreement in relation to which the breach occurred has been
concluded, the shortening of the duration of the contract or framework agree-
ment, and ensuring that the terms of the order are effective, proportionate and
dissuasive.
European remedies: corrective procedure
As well as (or instead of) bringing an action before a national court, aggrieved parties
may also lodge complaints with the European Commission. Once such a complaint
is lodged, the European Commission may initiate what is known as a 'corrective'
procedureifitissatisiedthataclearandmanifestbreachofpublicprocurement
rules has been committed during a contract award procedure, see EC Directive 92/13,
Chapter III.
2.17.4 Bringing proceedings under regulation 47
The Regulations provide that proceedings may not be brought against a contracting
authority unless that contracting authority is informed of the breach or apprehended
breach and of the complainant's intention to bring proceedings, see regulation 47(6)
and
Amaryllis Ltd v HM Treasury (sued as OGC buying solutions)
(2009). If seeking an
ineffectiveness order, such proceedings must be brought within thirty days beginning
with the date when the economic operator first knew or ought to have known that
grounds for starting the proceedings had arisen, see regulation 47(7)(b).
