Remedies - Move On, Nothing to See Here
Last time in our "Countdown to Law-nch" series we were looking at how the draft Public Contracts Regulations 2015 (the "Regulations") might affect the construction industry in particular. This week we have been considering Remedies for procurement breaches, where it seems that the status quo is set to be maintained.
Clearly the Brussels’ legislators felt they had done enough to shake up the landscape of procurement remedies when they passed the EU Remedies Directive in 2007 because the new Directives adopted by the EU last year and due to be implemented by the Public Contracts Regulations 2015 change nothing. The only difference is that the draft Regulations now find a proper place for Remedies and Regulation 47A-P is all now to be found in Part 3 beginning at Regulation 85 and running to Regulation 104.
This is not surprising but is perhaps an opportunity missed to grapple with some of the issues that have arisen (certainly in this jurisdiction) about the automatic suspension (see my blog post on this here) and the apparent toothlessness of the ineffectiveness remedy.
So is it a case of “move on nothing to see here” or is there anything for procurement litigators to get excited about in the new Regulations?
There are a few points that it will be worth keeping an eye on although it may take a while before we start to see them take shape. For example, Teckal type situations have been a popular source of litigation across the EU so it will be interesting to see how the codification of Teckal principles work and whether they bring greater clarity. That other famous bugbear of procurement lawyers-Pressetext-has also been codified and it will be interesting again to see if that minimises disputes in this area. Perhaps it will launch a new raft of cases. I have already heard it suggested that Regulation 73 requiring termination provisions to be included might give grounds for a claim if contracting authorities fail to terminate a contract where a substantial modification has taken place.
Teckal and Pressetext are familiar but the Regulations also give rise to a whole raft of potential new areas of dispute. Regulation 57 relating to exclusion looks particularly fraught with issues. What does demonstration by “any appropriate means” mean? What does establishment by a judicial or administrative decision “of final and binding effect” mean? What are “sufficiently plausible indications” Of course, some of this wording may not survive the consultation process but it seems likely that it will given the preference not to ‘gold plate’. In any event there is also the minefield of the “Self cleaning mechanisms and whether a bidder has done enough to prevent exclusion.
So, whilst there is nothing particularly to see in the Remedies themselves potential sources for challenge, old and new, still abound in the new Regulations.