Public Procurement

Public Contracts Regulations 2015 - Regulation 101

Pedro Telles

Aug 4, 2015 — 1 min read

Regulation 101 - The consequences of ineffectiveness

In Regulation 101 we can find the consequences of a declaration of ineffectiveness. Contrary to other jurisdictions where contracts are considered to be null and void from the start because the award decision was illegal, in England, Wales and Northern Ireland, ineffectiveness only produces effects for the future.

The main rule above is excepted when the court has previously issued any staying orders before the final ineffectiveness decision has been produced. In that scenario the contract ineffectiveness is deemed to start at the earlier date (at least that is my interpretation of paragraph 2 but I am not 100% sure).

In addition to the declaration of ineffectiveness the Court may make any order to address the particular circumstances of a case or deal with the matters arising from the declaration. Paragraph 4 provides a non-exhaustive list of examples covering potential issues such as restitution or compensation as to achieve a just outcome.

The final two paragraphs of this regulation refer to the situation whereby contracting authority and contractor agreed on contractual provisions to deal with a potential declaration of ineffectiveness. If that is the case, the Court's ability to issue orders under paragraphs 3 and 4 is limited to the extent of those contractual provisions being incompatible with the objectives of the declaration of ineffectiveness.

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