Contract-making suspended by challenge to award decision under reg.95 Public Contracts Regulations 2015

As Pedro briefly discussed earlier today here, reg.95 of the Public Contracts Regulations 2015 (PCR2015) sets up the conditions under which a challenge to an award decision suspends any contract-making possibilities for the contracting authority--ie triggers a litigation-related stand-still obligation.  It is important to stress that reg.95(3) PCR2015 clarifies that this litigation-related stand-still obligation does not affect any of the obligations eventually imposed by reg.87 PCR2015 (ie the Alcatel or non-litigation related stand-still obligation). Therefore, a stand-still obligation derived from reg.95 can arise even if the Alcatel stand-still period was not applicable to the specific award decision or, if applicable, has elapsed; provided the conditions set out in reg.95(1) PCR2015 are met.

In that regard, under reg.95(1) PCR2015, such litigation-related stand-still obligation applies, and the contracting authority is required to refrain from entering into the contract, where a claim form has been issued in respect of a contracting authority’s decision to award the contract, the contracting authority has become aware that the claim form has been issued and that it relates to that decision, and the contract has not been entered into. 

Hence, this is an obligation that the contracting authority needs to comply with in good faith and in order to preempt the possibility of a successful challenge beyond the minimum Alcatel period (if any), should the contracting authority still not had taken the necessary steps to conclude the contract and get its performance started. It is, in my view, a sort of estoppel that prevents the contracting authority to rush to conclude a contract only after having become aware of a challenge of the previous award decision.

Reg.95(2) PCR2015 determines that such litigation-related stand-still obligation will remain until either the Court brings the requirement to an end by interim order under reg.96(1)(a) PCR2015 (discussed tomorrow); or the proceedings at first instance are determined, discontinued or otherwise disposed of and no order has been made continuing the requirement (for example in connection with an appeal or the possibility of an appeal).

In my view, this is an important procedural mechanism and imposes clear incentives on contracting authorities to enter into contracts promptly after the expiry of the Alcatel stand-still obligation, where it applies [see reg.86 PCR2015] and, generally, once it is clear that there is no need to wait any further before proceeding to conclusion and performance.