The new Remedies Directive coming into force on 20 December 2009 contains a remedy of ineffectiveness - a challenger may in certain circumstances apply to court to have a public contract declared ineffective. One of these circumstances is where the contract was awarded without any advertisement or competition, in contravention of the The Public Contracts Regulations 2006.
However, a safe harbour is available. Contracting authorities who believe they are justified in awarding a contract without competition can protect themselves against a claim for a declaration of ineffectiveness by publishing a voluntary transparency notice in the OJEU, and by observing a voluntary standstill period of ten days from the day after the date of the notice.
The standard form for these voluntary transparency notices has now been published and is available for download from the EU Commission.