The Remedies Directive - is your organisation ready?

On 20 December the regulations implementing the new Remedies Directive came into force. The aim of the new rules is to provide more effective solutions for companies which suffer as a result of breaching the rules on public procurement.

There are immediate steps contracting authorities should take to mitigate the increased risks under the new regime:

• Senior officers and procurement managers should be briefed on the increased risks and practical implications under the public procurement rules and should ensure that compliance procedures are robust.
• Legal teams and all employees involved in tenders should consider the changes to the standstill period and the implications of the suspension rule and ineffectiveness remedy.
• Tender documentation (such as standstill letters) should be revised to reflect the changes under the new regulations.
• Consider whether guidance to evaluation teams should be updated, so it is easier to compile details of the characteristics of tenders for debrief purposes and ensure that appropriate debriefs are carried out at the relevant times.
• Consider the impact of the new rules on proposals to make direct contract awards without a call for competition, whether a voluntary transparency notice or contract award notice may be appropriate and whether contractual provisions should be agreed to deal with the possibility of an ineffectiveness declaration.
• Consider the application of the transitional provisions to tenders which have been commenced, whether formally or informally.

Contractors, developers and service providers which contract with public bodies and participate in tender procedures will also need to consider the impact of the new remedies:

• Signed contracts will now be subject to challenge, so companies will have an interest in ensuring that the procurement rules have been followed, particularly where they have been awarded the contract without an open tender procedure.
• Companies will wish to understand what would happen in the event of a challenge to their contract award. This may influence the costs committed at the front end of a contract, during the period in which a challenge could be brought.
• Companies may also wish to limit their risk exposure by ensuring that the contracting authority publishes appropriate notices and that the contract contains provisions dealing with the consequences of ineffectiveness.
• Finally, unsuccessful bidders will wish to consider their improved options for bringing legal action under the new rules.