NOTE: compliance with the EU procurement rules minimises the risk of legal challenge.
Click here for a short overview of the new Remedies legislation that came into force on 20 December 2009.
A separate Remedies Directive deals with the powers of the national courts to provide remedies to aggrieved persons in proven cases of infringements. This too has been transposed into UK law. A summary of actions has been provided.
A claim may arise from a tenderer who believes that a contracting authority has infringed its obligations under the appropriate Regulation. The question upon which a claim will hinge is whether the contracting authority acted in breach of "a duty owed to suppliers". Such a breach will not be a criminal offence but it shall be actionable "... by any supplier who, in consequence, suffers, or risks suffering, loss or damage." The court has the power to grant appropriate interim and final relief and/or award damages, except where a contract has already been entered into in which case the court may only award damages.
Where a supplier believes there has been an infringement of the Regulations, the supplier must promptly notify the contracting authority of its intention to bring proceedings. The action will be heard in the High Court in England, Wales and Northern Ireland, and by the Court of Session in Scotland. However, the Commission retains a residual power to question a member state on any "clear and manifest infringement".
Another potential source of challenge lies with the Commission who will investigate alleged infringements of the Treaty and directives using the powers under Article 169 of the Treaty and Remedies Directive.
DCSF - Procurement Update including remedies February 2010
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