New Tender Review Process

Author:Mr Eoin Cunneen and Niamh Hackett
Profession:LK Shields

Public sector contracts invariably involve high value contracts. The EU has developed a series of complex regulations governing the way contracts are awarded and which set out the remedies for unsuccessful tenderers who feel aggrieved by the tender process. Eoin Cunneen and Niamh Hackett simplify the process. The European Communities (Public Authorities' Contracts) (Review Procedures) Regulations 2010 aim to encourage more cross-border tendering by giving tenderers greater certainty about their rights and a more robust review procedure. They were signed into Irish law on 25 March 2010 and apply to decisions taken after that date.

The regulations provide that there must be a standstill period in respect of certain public contracts and that the contracting authority is not allowed to award the contract during that time period. The standstill period begins on the day after the tenderer is sent (rather than receives) a notice of the outcome of his application. The length of this standstill period is at least 14 days if the notice is sent by fax or email and 16 days if it was sent by post.

The notice to the unsuccessful tenderer must:

Inform him of the decision reached, State the exact standstill period which applies to the contract, Provide a summary of the reasons for the rejection of the tender. This should give the name of the successful bidder and explain why that tender that was selected. In the case of an unsuccessful candidate, the summary may be provided by setting out:

The score obtained by the candidate concerned; and The score achieved by the lowest scoring candidate who is considered to meet the pre-qualification requirements in respect of each criterion assessed by the Contracting Authority. Court Applications

If a bidder believes that his rights have been infringed or that the contract was not properly awarded, the bidder can seek an interlocutory order from the High Court to correct the alleged infringement or seek to judicially review the award of the contract. An interlocutory order is a temporary order which a court may make pending a full trial of the issues in dispute. Such an application must be made within 30 days after the applicant was notified of the decision or when it knew, or ought to have known, of the alleged infringement.

The 30 day time limit will apply to most procurement challenges with the exception of applications for a declaration of ineffectiveness. The limitation period for those seeking a...

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