The Remedies Directive came into force on 20 December 2009, with a view to encouraging greater transparency in the procurement process (in particular, to reduce the number of ‘direct awards’, where contracts are awarded without an OJEU advert). This has been done by giving greater remedies to aggrieved bidders and encouraging them to litigate in the case of a breach. In particular there are:

enhanced notice requirements: the old ‘two-stage’ approach where bidders could ask for more information within two working days has been scrapped. Now, all information has to be given up-front by the issue of an ‘award-decision notice’ to everyone who submitted a bid. This will include the award criteria, the reasons for the decision, and the score of the winner (and of the person sent the notice);

stronger stand-still provisions: the stand-still period is defined as ending at midnight on the tenth day after the date on which the notice was sent (15 days if the notice was not sent by electronic means). In simple terms, the authority cannot enter into a contract for that period of time after service of the award-decision notices;

tougher remedies: any ‘economic operator’ can sue for a breach (there is a three-month time limit). If legal proceedings are served, and the contract has not been entered into, then the authority must not enter into the contract until the court has heard the matter. If the contract has already been entered into, then it must be declared ineffective if a ‘ground for ineffectiveness’ exists (ie no OJEU notice was published; if there was a breach of the stand-still period). Note that the time limit for suing when there is a ground for ineffectiveness is increased to six months.

The moral for public bodies is now clear: always publish an OJEU notice and observe the notice and stand-still requirements (unless it is crystal clear that you do not have to do so – in which case, publish the award notice as soon as possible and still observe the notice and stand-still requirements, so as to cut the at-risk period from six months to 30 days). With major, high-value contracts, it may be advisable to build in a six-month delay at the start of the contract so that the period for potential ineffectiveness will have passed. Suffice to say, this is a complex area. Source: Morgan Cole.