The Office of Government Commerce (OGC) is currently carrying out a consultation on the implementation of the Remedies Directive in the UK.
The Remedies Directive extends the rights of suppliers where a tender has been conducted in breach of the procurement regulations. In particular it introduces the right of a supplier to apply to a court to have a contract between a contracting authority and a third-party supplier rendered ineffective. This right arises where a contract has been directly awarded in breach of the procurement rules, a contract has been awarded pursuant to a framework agreement or a dynamic purchasing system and the appropriate regulations have not been complied with or the contracting authority has committed certain breaches of the standstill period.
Where a contract is rendered ineffective this may have a detrimental impact upon the third-party supplier that was awarded the contract as the supplier may have already performed the contract in part or in whole. The Remedies Directive allows member states to decide how such rights will be dealt with under national law and those involved in the procurement of goods, services or works may wish to be part of this debate.
Similarly the Remedies Directive permits member states to decide whether they want to introduce a review period during which an aggrieved supplier can ask the contracting authority that undertook the tender to review its award decision. How any such review process may be implemented in the UK may have an impact on the length of the standstill period and again procurement departments in NHS bodies may have suggestions on how this could operate.
Although it will not be implemented until December 2009, once in law the Remedies Directive will strengthen the rights of suppliers unhappy with the way in which a procurement has been run.
The consultation document can be accessed here.