EU Law

Interestingly, the new rules make compliance with the EU public procurement rules as important for the successful contractors as for the public authorities tendering the contract. They introduce procedural changes to the standstill period and to the remedies available to unsuccessful contractors. By simply raising legalproceedings an unsuccessful contractor can prevent the award of the contract to the successful contractor and, if the contract has already been entered into, thecourts now have express powers to set aside concluded contracts and to fine authorities found to have breached the rules.

The new rules are complex, but the other main points contractors need to be aware of when bidding for public sector work subject to EU public procurement rules are:You must be informed “as soon as is reasonably practicable” of any decision excluding you from the tender process. Authorities cannot wait until the end of theprocess when they announce the award decision;

The so-called ‘Alcatel letters’ now need to include a full written debrief setting out the award criteria, the identity of the successful contractor, a full breakdown of your scores and the scores of the successful contractor and a narrative setting out the characteristics and relative advantages of the winning firm’s tender submission;

If you believe the tender process has not been conducted in accordance with EU rules of transparency and equal treatment, the procuring authority will be automatically prevented from awarding the contract if you raiselegal proceedings. There is no longer a need to seek an interim injunction from the courts preventing the authority going ahead. As well as improving the procedural rights and recourses available to unsuccessful contractors, the new rules are likely to result insuccessful firms taking a much closer interest in the procurement process leading to the award of the contract.

This may include insisting on some form of diligence exercise to ensure the procuring authority has fully complied with the standstill period requirements, and
potentially with requests for warranties or indemnities that have adhered to the EU public procurement rules.

Graeme Young is a senior associate at Dundas & Wilson.