The Amendment Regulations

The Regulations aim to make available improved remedies to disappointed tenderers in cases of breach.

The main changes effective as of 20.12.09 are:

• the revision of the mandatory standstill period and introduction of new requirements for standstill notices;
• the introduction of new fines and penalties;
• a finding of 'ineffectiveness' for particularly serious breaches – this could render our contractual relationships null and void;
• immediate suspension of the contract award procedure when proceedings are commenced.

The Regulations do not apply retrospectively. They only apply to procurements which commence on or after the 20.12.09.  

1. New Standstill Provision and Information now required to be given at Contract Award Stage

A contracting authority must notify all bidders of its decision to award a contract. The notice must now contain the following information:

• the criteria for the contract award;
• the score of the party receiving the notice;
• the score of the successful party;
• the reasons why a tenderer has been unsuccessful;
• the characteristics and advantages of the successful tender; and
• the legal effect of the standstill period.

The standstill periods are:

• notification to tenderers sent by fax/email – 10 days
• notification to tenderers sent by post – 15 days

The standstill period is not required if:

• there is only one tenderer;
• the contract is based on a framework agreement;
• the contract is awarded under a dynamic purchasing system; or
• there is no requirement for prior publication of a contract notice in the Official Journal.

2. Ineffectiveness Orders

The court can make an ineffectiveness order where one of the following three grounds apply:

1. the contracting authority has entered into a contract without prior publication in the Official Journal;

2. there has been a substantial breach of the procurement rules contained in the 2006 Regulations combined with a breach of the new procedural rules:

   1. bidders were not notified of the contracting authority's decision;

   2. the contracting authority failed to apply the standstill period; or

   3. the contracting authority entered into a contract despite proceedings having been brought against it;

3. the award of an above threshold contract based on a framework agreement or awarded under a dynamic purchasing system breaches the procurement rules.  

If an ineffectiveness order is made, the court shall:

• impose a fine on the contracting authority; and
• make any other order that it considers appropriate. This may include shortening the length of the contract, cancelling ongoing obligations, or awarding damages.

Ineffectiveness claims must be made within particular time limits:

• 30 days from the date of publication of the Contract Award Notice; or
• 30 days from the date on which bidders were notified of the contracting authority's decision; or
• 6 months in any other case.

3. Suspending a Contract

Where proceedings are brought against a contracting authority, the court may suspend the contract award procedure and the implementation of any decision or action taken by the contracting authority.

It may then decide to:

• set aside a decision or action taken by a contracting authority;
• require the contracting authority to amend any document; and
• make an award of damages to a party who suffered loss as a consequence of the breach.