The ERG (OGC) has recently published a policy note on framework agreements reminding contracting authorities of the importance of checking that they fall within the class of public bodies who are entitled to use that framework.
This issue has been made more important since the Remedies Directive came into force at the end of the 2009 bringing with it a new remedy of 'ineffectiveness' for contracts entered into directly without competition when competition was required. If a declaration of ineffectiveness is made the contract comes to an end prospectively from the date of the declaration.
The ERG (OGC) points out that a contracting authority who uses a framework without being entitled to do so is in effect awarding a contract directly and without the proper element of competition and thus is laying itself open to a claim by a challenger for a declaration of ineffectiveness.
Contracting authorities must therefore check the scope of any proposed framework arrangement very carefully. The policy note states that specifying any contracting authority as being entitled to use a framework in the OJEU notice is unacceptably wide. It is acceptable for the framework to mention classes of public bodies provided this class description is sufficient to immediately identify whether a public body is a member of that class. If this is not possible the members of the class must be fully listed out.
Frameworks are only open to the contracting authorities that were originally party to the agreement. However the policy note contemplates that changes to the list of members of the class may be legal provided that the scale and scope of the framework is not materially altered.
The policy note suggests that operators of current frameworks where terminology is too generic should consider issuing clarifications containing more detailed descriptions of which bodies are entitled to use the framework. Obviously in issuing these clarifications it is important to take a conservative approach and not to extend the original scope of the framework whether in terms of value or classes of public bodies permitted to use it.
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