The Remedies Directive. Emily Heard Bevan Brittan LLP 20 October 2010

Transcription

1 The Remedies Directive Emily Heard Bevan Brittan LLP 20 October

2 The Remedies Directive Protection 2

3 Remedies The Old Regime applies to procurements started before 20 December 2009 The New Regime applies to procurements started on or after 20 December

4 The New Regime: Directive 2007/66/EC The Remedies Directive implemented on 20 December 2009 via SI 2009/2992 Applies to procurement processes started on or after 20 December 2009 Introduces: - new remedy of ineffectiveness - automatic injunction - contract shortening and fines - new rules on calculation of standstill period and debriefing obligations 4

5 Automatic injunction What is it? Practical tips for preventing it What can you do if an automatic injunction is in place? 5

6 The 3 ineffectiveness grounds 1. Where an OJEU Notice was supposed to be published but was not. 2. Where there has been a breach of a standstill provision plus another breach of the rules which has affected an operator s chances of winning the contract. Standstill provision includes: Standstill and debriefing requirements Automatic injunction Court order prohibiting contract award 3. Where there is a breach of the rules on call-offs under frameworks or dynamic purchasing systems 6

7 Standstill and Debriefing Requirements Old Alcatel letter or standstill letter - now referred to as Award Decision Notice Front-loaded No obligation to inform participants already excluded Characteristics and relative advantages Score/Scores? 7

8 Top tips on debriefing Face to face? Telephone? In writing? Be prepared Take notes Audit trail Dealing with commercially sensitive information How far must debriefing go? Disclosure of flaws in the process 8

9 Calculation of standstill period Please see flow chart in pack 9

10 What orders will the Court make? Declare the contract ineffective if one of 3 grounds exists What does this mean for your contract? General interest exception Give effect to parties intentions consider including provisions in your contracts Contract shortening Fines 10

11 Various types of Orders Please see flow chart in pack 11

12 12 PROTECTION

13 Protecting your contract from ineffectiveness 3 situations: If advertised in OJEU at start of process If not advertised in OJEU at start of process If calling off an over threshold contract under a framework using a mini-competition 13

14 (1) If advertised in OJEU at start of process: To avoid the second ground of ineffectiveness: Send an Award Decision Notice (Reg 32) and then standstill (Reg 32A); To reduce any ineffectiveness challenge period to 30 days: After the contract is awarded send written confirmation informing tenderers that contract has been awarded and reasons why (Reg 47E(5)) 14

15 (2) If not advertised in OJEU at start of process To avoid the first ground of ineffectiveness: Publish a VEAT and then standstill for 10 days (Reg 47K(3)); AND/OR to reduce any ineffectiveness challenge period to 30 days: After the contract is awarded publish a Contract Award Notice justifying lack of advertisement (Reg 47E(3)) 15

16 (3) If calling off an over threshold contract under a framework using a minicompetition To avoid the third ground of ineffectiveness: Voluntarily send an Award Decision Notice (Reg 32) and then standstill in line with Reg 32A (Reg 47K(7)) N.B. This is not the same as a VEAT AND/OR to reduce any ineffectiveness challenge period to 30 days: After the contract is awarded send written confirmation informing tenderers that contract has been awarded and reasons why (Reg 47E(5)) 16

17 Know How for procurement alerts and articles SIMAP website (EU procurement) Commission s web pages on policy/legislation: ment/index_en.htm OGC website for links, guidance and notes 17

18 Thank you for listening Emily Heard Direct dial: