Public Procurement The Remedies Directive Roger Cotton & Christine O’Neill Brodies LLP December 2009 Session 3

Assessing the risks Direct award / “non-competitive action” Less obvious risks (please see....)

Managing the risks The new remedies regime increases the importance of compliance The drive for compliance should not be to the detriment of efficient and effective procurement Getting standstill absolutely right is critical Will voluntary OJEU notification before award become a prudent backstop?

Getting standstill right Template for notices Consistent content (SPD guidance) Preparation during evaluation Practicalities:  Check addresses  Keep track of “concerned” candidates and tenderers  Count the days

Transition Key changes do not affect any award procedure commenced before 20th December 2009 Commencement triggered by:  OJEU notice  other advertisement (if no OJEU required)  contact with bidder (if no advertisement) Key changes do not affect call-off contracts under a framework or DPS if the award of that framework or DPS was commenced before 20th December 2009

Part B Services The procurement regulations:  Standstill – no  Ineffectiveness – no (unless contract award after proceedings served) The Federal Securities case – an exceptional Part B:  Standstill – yes  Set-aside – yes

Other changes Counting days  The day of the notice does not count (day zero)  The next day is day 1 (whether or not it’s a working day)  If the last day is not a working day, the period is extended to include the next working day

Conclusions The new remedies up the ante Certainty as to the approach of the courts remains unachievable, in terms of:  how the courts will exercise the discretion the regulations give them; and  how the courts will develop the parallel system of remedies Scope for increased numbers of challenges Many of the risks are manageable Revisit procedures, processes and templates

Public Procurement contacts Roger Cotton: Christine