The Remedies Directive has been implemented and has introduced some key changes to the Procurement Regulations
The Public Contracts (Amendments) Regulations 2009 (SI 2009/2992) came into force in December 2009 and implement the Remedies Directive. The Regulations only apply to procurements first advertised after 20 December 2009.
The key changes are as follows:
full debrief information must accompany all "Alcatel" standstill letters sent to unsuccessful bidders, (and not just be provided to those bidders that request it within 48 hours of receiving the letter);
there will be a suspension of any contract award procedure when legal proceedings are issued against the contracting authority. At present, bidders claiming that a tender process is flawed are required to apply to the court for an injunction - this will no longer be necessary;
introduction of the concept of ineffectiveness. In some circumstances, this will mean that a court will be able to declare that a contract is ineffective (that is, void) as a result of flaws in the procurement process. Courts will also have the power to shorten the term of a contract if they consider it is appropriate (whereas previously, once a contract had been executed, the only remedy available to aggrieved bidders was damages); and
introduction of financial penalties for contracting authorities engaging in flawed procurement processes.
The changes are wide ranging and it will be important for everyone involved in public procurement to be aware of their impact.
