Regulation breaches

The principal means of enforcement for a breach of the Regulations is action by suppliers against individual contracting authorities in the High Court.

The High Court’s powers include both pre-contractual remedies (i.e. those that can be imposed before the contract is entered into) and post-contractual remedies.  Pre-contractual remedies include the power to suspend an incomplete contract award procedure (an injunction) or the setting aside of a decision in an incomplete contract award procedure.  The High Court also has powers to award damages as a pre-contractual remedy.

Post contractual remedies (for contracts that have already been awarded) include contractual ineffectiveness (i.e. cancellation of any illegally awarded contracts, but only for very serious rule breaches), contract shortening and civil financial penalties (fines).  A properly applied standstill period gives good protection against post-contractual remedies.

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."

Where a supplier believes there has been an infringement of the Regulations, the supplier must bring proceedings, by issuing a claim form at Court, within 30 days from the date of knowledge of the alleged infringement.  The Court does have the power to extend this timeline to 3 months in special circumstances. 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".

Additional Information can be found in:

A Guide to Managing Above Threshold Tenders

A Guide to Managing Bidder Challenges