The Remedies Directive is implemented into English law by the Public Contracts (Amendment) Regulations 2009 (the ‘2009 Regulations’).
The 2009 Regulations apply to procurements commenced prior to 20 December 2009. We set out the key implications of the 2009 Regulations.
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.
As demonstrated by the case of European Dynamics, under the 2006 Regulations, a claimant had to obtain an interim injunction if it wished to prevent the contracting authority from entering into the contract, and this could be problematic. However, the 2009 Regulations introduce an automatic suspension of the contract award procedure when proceedings alleging breach of the public procurement rules are issued and served on the contracting authority. That suspension will then remain in force until the court brings it to an end by an interim order under the 2009 Regulations, or the proceedings are determined, discontinued or otherwise disposed of.
It should be noted, however, that in deciding whether to bring an automatic suspension to an end, the court must consider whether, if the suspension were not in operation, it would be appropriate to make an interim order. In particular, it will apply the American Cynamid test (serious issue to be tried and balance of convenience as tested and explained under the European Dynamics case). Although the test applied will be the same, under the new regime, the onus will be on the defendant to show that the suspension should be lifted, rather than on the claimant to show that there should be a suspension in the first place.
See further: OGC for the 2009 Regulations followed by an explanatory note .
