European Communities (Public Authorities' Contracts) (Review Procedures) Regulations, 2010

• Jurisdiction: Ireland
• Year: 2010
• Citation: IR SI 130/2010

ARRANGEMENT OF REGULATIONS

1. Citation.

2. Interpretation—general.

3. Application of these Regulations to contracts and decisions.

4. Persons to whom review procedures are available.

5. Standstill period.

6. Notices to unsuccessful tenderers and candidates.

7. Time limits for applications to Court.

8. Application to Court.

9. Powers of Court.

10. Rules of court.

11. Declaration by Court that a contract is ineffective.

12. Effect of declaration that a contract is ineffective.

13. Alternative penalties.

14. Non-exclusion of other remedies.

15. Revocation.

S.I. No. 130 of 2010

EUROPEAN COMMUNITIES (PUBLIC AUTHORITIES’ CONTRACTS) (REVIEW PROCEDURES) REGULATIONS 2010

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 30th March, 2010.

I, BRIAN LENIHAN, Minister for Finance, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972), and for the purpose of giving effect to Council Directive 89/665/EEC (1 ), as amended by Directive 2007/66/EC (2 ), hereby make the following regulations:

Citation

1.—These Regulations may be cited as the European Communities (Public Authorities’ Contracts) (Review Procedures) Regulations 2010.

Interpretation—general

2.—(1) In these Regulations—

“contracting authority” has the same meaning as in the Public Authorities’ Contracts Regulations;

“Court” means the High Court;

“eligible person” has the meaning given by Regulation 4;

“Official Journal” means the Official Journal of the European Union;

“Public Authorities’ Contracts Regulations” means the European Communities (Award of Public Authorities’ Contracts) Regulations 2006 ( S.I. No. 329 of 2006 );

“reviewable public contract” means a contract (including a framework agreement and a dynamic purchasing system) to which the Public Authorities’ Contracts Regulations apply in accordance with Part 2 or 9 of those Regulations, or a design contest to which Part 10 of those Regulations applies;

“Revised Remedies Directive” means Council Directive 89/665/EEC 1 of 21 December 1989, as amended by Directive 2007/66/EC 2 of the European Parliament and of the Council of 11 December 2007;

“standstill period” has the meaning given by Regulation 5.

(2) For the purposes of these Regulations, a contract has been concluded when it has been entered into and is legally binding.

(3) For the purposes of these Regulations—

(a) a tenderer is concerned if he or she has not been definitively excluded from a contract award procedure, and

(b) a candidate is concerned if the contracting authority has not made information available to him or her about the rejection of his or her application before the notification of the contract award decision to the tenderers concerned.

(4) For the purposes of paragraph (3)(a), the exclusion of a tenderer is definitive if it has been notified to the tenderer in accordance with Regulation 6 and—

(a) has been declared lawful by the Court, or

(b) is not, or can no longer be, subject to a review procedure.

(5) A word or expression used in both these Regulations and the Public Authorities’ Contracts Regulations has, unless the contrary intention appears, the same meaning in these Regulations as in the Public Authorities’ Contracts Regulations.

Application of these Regulations to contracts and decisions

3.—These Regulations apply to decisions taken, after the coming into operation of these Regulations, by contracting authorities in relation to the award of reviewable public contracts, regardless of when the relevant contract award procedure commenced.

Persons to whom review procedures are available

4.—For the purposes of these Regulations, a person is an eligible person in relation to a reviewable public contract if the person—

(a) has, or has had, an interest in obtaining the reviewable public contract, and

(b) alleges that he or she has been harmed, or is at risk of being harmed, by an infringement, in relation to that reviewable public contract, of the law of the European Communities or the European Union in the field of public procurement, or of a law of the State transposing that law.

Standstill period

5.—(1) A contracting authority shall not conclude a reviewable public contract to which a standstill period applies under these Regulations within the standstill period for the contract.

(2) There is no standstill period for—

(a) a contract where the Public Authorities’ Contracts Regulations do not require prior publication of a contract notice in the Official Journal,

(b) a contract where the only tenderer concerned is the one who is awarded the contract and there are no candidates concerned,

(c) a contract entered into or awarded on the basis of a framework agreement in accordance with Regulation 33, 34 or 35 of the Public Authorities’ Contracts Regulations, or

(d) a specific contract entered into on the basis of a dynamic purchasing system in accordance with paragraphs (5) to (12) of Regulation 36 of the Public Authorities’ Contracts Regulations.

(3) The standstill period for a contract begins on the day after the day on which each tenderer and candidate concerned is sent a notice, in accordance with paragraphs (2) and (3) of Regulation 6, of the outcome of his or her tender or application.

(4) The duration of the standstill period must be at least—

(a) if the notice under Regulation 6 is sent by fax or electronic means, 14 calendar days, or

(b) if the notice is sent by any other means, 16 calendar days

Notices to unsuccessful tenderers and candidates

6.—(1) The notice referred to in Regulation 5(3), or a notice to an unsuccessful tenderer for a contract based on a framework agreement or dynamic purchasing system, shall be as set out in this Regulation.

(2) Such a notice—

(a) shall inform the candidates and tenderers concerned of the decisions reached concerning the award of the contract, the conclusion of a framework agreement or admittance to a dynamic purchasing system, including the grounds for any decision not to award a contract, conclude a framework agreement or implement a dynamic purchasing system for which there has been a call for competition,

(b) shall state the exact standstill period applicable to the contract, and

(c) for each unsuccessful tenderer or candidate, shall include—

(i) in the case of an unsuccessful candidate, a summary of the reasons for the rejection of his or her application,

(ii) in the case of an unsuccessful tenderer, a summary of the reasons for the rejection of his or her tender.

(3) In the case of a tenderer who has submitted an admissible tender (that is, a tender that qualifies for evaluation under the rules of the relevant tender process), the summary required by paragraph (2)(c)(ii) shall comprise—

(a) the characteristics and relative advantages of the tender selected,

(b) the name of the successful tenderer, or, in the case of a framework agreement, the names of the parties to it, and

(c) in the cases referred to in paragraphs (9) to (11) of Regulation 23 of the Public Authorities’ Contracts Regulations, the reasons for the contracting authority’s decision of non-equivalence or its decision that the works, supplies or services do not meet the performance or functional requirements.

(4) In the case of an unsuccessful candidate, the information to be provided under paragraph (2)(c)(i)may be provided by setting out—

(a) the score obtained by the candidate concerned, and

(b) the score achieved by the lowest-scoring candidate who was considered to meet the pre-qualification requirements, in respect of each criterion assessed by the contracting authority.

(5) In the case of an unsuccessful tenderer, the information to be provided under paragraph (2)(c)(ii) and subparagraphs (a) and (b) of paragraph (3) may be provided by setting out—

(a) the score obtained by the unsuccessful tenderer concerned, and

(b) the score obtained by the successful tenderer in respect of each criterion assessed by the contracting authority.

(6) In the case of a framework agreement to which more than one tenderer has been admitted, the information to be provided to each unsuccessful tenderer under paragraph (2)(c)(ii) may be provided by setting out—

(a) the scores obtained by the tenderer concerned in respect of each criterion assessed by the contracting authority, and

(b) the scores obtained in respect of each criterion...