Public Procurement

Public Contracts Regulations 2015 - Regulation 97

Pedro Telles

29 Jul 2015 — 1 min read

Regulation 97 - Remedies where the contract has not been entered into

This Regulation establishes what remedies are available to the court in case the contract is yet to have been entered into. The remedies for situations where contracts have been entered into can be found in Regulation 98.

The court can order remedies under this Regulation in case it finds the contracting authority in breach of the duty owed in accordance with Regulations 89 and 90. There are three remedies available to the court: setting aside the decision, ie the award decision for example; ordering the contracting authority to amend a document; and awarding damages.

I will focus my commentary on the third remedy which I find particularly interesting at this stage. Although the Regulation clearly allows an award decision to be set aside, it still includes the payment of damages as an alternative (and not a subsidiary option). What can this mean? I can see three different scenarios.

1. This may be conceived as allowing the court to set aside the decision and cumulatively awarding damages to the same economic operator, in case the grounds for awarding damages are present.

2. The Regulation can also be conceived as allowing the court to award damages to other economic operators that have been disadvantaged in a procedure but were not going to win in any case. This seems unlikely as neither good faith nor pre-contractual liability are well established under the law of England and Wales as far as I know.

3. Finally, it may be that the drafting of this Regulation does allow for damages to be awarded in alternative to setting aside the decision.

Thoughts?

On case C-652/22 Kolin Inşaat Turizm Sanayi ve Ticaret

The CJEU laid down early this week a fairly important judgment on third country access to procurement. On case C-652/22 Kolin Inşaat Turizm Sanayi ve Ticaret the Court concluded that economic operators from third countries neither party to the GPA nor with whom the EU has a deal are

All steam ahead with the revision of the procurement Directives

A couple of weeks ago a little birdie told me the Commission wanted to get the ball rolling on the revision of the procurement legal framework within the first 100 days of its term. Well, looks like they want to hit the ground running with the evaluation of the current

The Portuguese Audit Court finds systemic abuse of direct awards

Back in 2021 the then Portuguese government decided to make procurement more flexible as to ensure the Recovery and Resilience Facility money was spent quickly. In 2023 I warned about some of the risks that the reform had introduced here and here. Fast forward to 2024 and the Portuguese Audit

The Public Procurement Data Space is upon us

The Commission launched last week the PPDS, a service that is expected to aggregate data about public procurement in the EU. In essence it takes the data included in the eForms filled in by contracting authorities and makes it available to anyone. For example, it is possible to check for

Read more

On case C-652/22 Kolin Inşaat Turizm Sanayi ve Ticaret

All steam ahead with the revision of the procurement Directives

The Portuguese Audit Court finds systemic abuse of direct awards

The Public Procurement Data Space is upon us