The Remedies Directive, introduced in 2009, sets out the principal means of enforcement for a breach of the Regulations and other enforceable EU law such as the Treaty. The Remedies Directive is now included in The Public Contracts Regulations 2015.
The principal means of enforcement for a breach of the Regulations are:
- action by suppliers against individual contracting authorities in the High Court; and
- action by the EU Commission against Member States in the Court of Justice of the European Union (CJEU).
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. 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, 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".
Cases can also be pursued via the European Commission, for breach of the relevant European Directive and/or EU Treaties. These cases, where accepted by the Commission, trigger infraction proceedings against the Member State, and can lead to a CJEU hearing, substantial fines, and potentially other CJEU imposed orders against the Member State if the breach is not satisfactorily resolved by other means.
Additional Information can be found in:
OGC published 3 guidance documents in December 2009 that provide more detail on the information on the Remedies Directive.
This guidance is supplemented by changes to the time limit in bringing proceedings which are explained in Bevan Brittans Article dated Nov 2011.