The Commission has initiated infringement proceedings against Ireland for Ireland's alleged failure to adequately transpose the public procurement directives into national law. In particular, the Commission alleges that the manner in which Ireland has established the rules governing the notification of contract award decisions and provision of reasons to tenderers may in practice result in the standstill period having expired by the time tenderers are fully informed of the reasons. Such a circumstance would, according to the Commission, impede a tenderer's right to effective legal remedies.
The offending provisions of Irish law are Article 49 of the European Communities (Award of Public Authorities' Contracts) Regulations 2006 (SI 329 of 2006) (the Public Sector Regulations) and Article 51 of the European Communities (Award of Contracts by Utility Undertakings) Regulations 2007 (SI 50 of 2007) (the Utilities Regulations).
Article 49 of the Public Sector Regulations requires that tenderers be informed of the award decision by the most rapid means of communication as soon as is practicable after the contracting authority takes a decision. Calculated from the date on which tenderers were informed of the award decision, the standstill period which needs to elapse before the conclusion of the contract must be at least 14 days. However, under Irish law, the contracting authority is required to give the reasons for the rejection of a tender only when it receives such a request and then must provide the reasons as soon as possible and in any event no later than 15 days after the request is received. In the Commission's view, this means that the standstill period may have already lapsed by the time an unsuccessful tenderer is fully informed of the reasons for the rejection of his offer.
Article 51 of the Utilities Regulations requires contracting entities to notify tenderers of the award decision, indicating the principal reason, or reasons, why the unsuccessful tender has not been selected. As the Utilities Regulations prescribes that a contracting authority must outline the reasons for its decision as soon as possible and in any event no later than 15 days after requested to do so, the Commission is of the view that the standstill period might have already lapsed by the time an unsuccessful tenderer is fully informed of the reasons for the rejection of his offer.
The judgment of the European Court of Justice on this issue is pending.