The EU Remedies Directive
(2007/66/EC) amended the UK Public Contract Regulations and affects all procurement contracts started after 20 December 2009.
The rules aim to improve access to rapid and effective review procedures for suppliers who allege that public authorities have breached procurement rules, and in particular to tackle the direct illegal award of contracts.
They allow remedy actions to be brought both before the contract is signed (pre-contractual remedies) and after (post-contractual remedies). Pre-contractual remedies are intended to correct the infringement of the public procurement rules in the course of the tendering procedure and in any event, before the contract becomes effective. These include the right of interim measures, a compulsory standstill period and the requirement to suspend the award procedure whilst the appeal is being investigated to prevent the award of the contract. On the other hand, post-contractual remedies aim to declare an existing contract ineffective and/or to provide compensation (mainly damages) to the affected parties after the contract in question has been awarded.
The rules introduced a more harmonised EU requirement for a ten-day 'standstill' period before a contract can be awarded, which requires public authorities to provide the full reasons for the award decision at the start of the standstill period, rather than upon request.
NHS organisations that fall foul of the rules are subject to fines, the possibility of having contracts shortened and, where there are serious breaches of public procurement rules, having their contracts overturned.
The NHS European Office published a briefing to raise awareness among NHS colleagues responsible for procurement activities of the key changes introduced by this Directive and to highlight provisions in the law which public authorities can use to protect themselves from challenge.
Consultation on the EU Remedies Directive
The European Commission has launched a public consultation to evaluate the effectiveness of the EU Remedies Directive. The on-line consultation will run until 20 July 2015 and the Commission is seeking contributions in particular, from contracting authorities, review bodies and economic operators. NHS bodies interested in providing their views on the Directive, can find the questionnaire here. On the basis of the outcomes of the consultation exercise the Commission will then take a decision on whether the Directive is fit for purpose or whether changes should be proposed.