Remedies Directive 'transitional provisions'

The amended Remedies Directive comes into force on 20 December 2009. The new rules include more detail on the content of award decision notices sent to bidders, and a new power for courts to make public contracts ineffective in certain circumstances. These changes are being introduced via amendments to The Public Contracts Regulations 2006.

While it is clear that new procurements commenced on or after 20 December will be fully subject to the new rules, it is less obvious what is required of procurements that have already been started (but not yet finished) before 20 December.

It's true that the UK regulations do state that nothing in these Regulations affects any contract award procedure commenced before 20th December 2009. The difficulty however  is that the parent EC Directive from which these amendments come and which takes precedence over them in terms of legal force  contains no transitional provisions at all simply stating that 'Member States shall bring into force the laws regulations and administrative provisions necessary to comply with this Directive by 20 December 2009.'

There must therefore be a risk for contracting authorities which conduct debriefs along the old lines after 20 December in reliance on the transitional provisions in the Regulations that a disgruntled supplier will allege that the Directive requires the standstill and review element to be run along the new lines after 20 December even for procurement processes that were commenced before that date.

Contracting authorities may decide the safest option is to run all debriefs in accordance with the new rules after 20 December regardless of whether they are strictly required to do so by the letter of the UK Regulations. This may the best option where there are relatively few suppliers who need to receive the new more detailed award decision notices. Where there are a large number though this may not be an attractive route to take.

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