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What has changed? – On 20 December 2009 the EU Remedies Directive was incorporated into UK Public Contracts Regulations.
What do the changes mean? – The purpose of the changes is to achieve greater transparency in public procurement processes, some key issues arising are:
• It is now easier for suppliers to challenge contracts after they’ve been awarded. If the correct procurement procedures are not followed the UK courts may cancel the contract and apply an ‘effective, proportional and dissuasive’ fine on the college or shorten the contract and/or apply a fine. Additionally, both the complaining supplier and the contractor who has its contract taken away can be awarded damages.
• All bidders must be provided with comprehensive written feedback including the reasons for the contract award, within their ‘standstill period’ communication. This communication must now, in addition to what was required before, give them (a) the reasons why they failed the technical specification and, (b) the “characteristics and relative advantages” of the winning tender(s). They must also be allowed a minimum of ten days to raise a challenge before a contract is formally awarded.
• If a legal challenge is raised the contract cannot be awarded until the challenge is withdrawn or has been considered by the courts.
• Challenges may be made up to six months after award of contract; steps can be taken to reduce this if the regulations are fully complied with.
• Anyone who could have potentially tendered for a requirement that was not correctly advertised may raise a legal challenge, not just the unsuccessful suppliers.
• Award notices must be published for all contracts subject to the regulations (including single tenders) not just those that were advertised in the European Journal.