Interim orders under reg.96 Public Contracts Regulations 2015

Reg.96 of the Public Contracts Regulations 2015 (PCR2015) establishes rules for the adoption of interim measures aimed at securing the possibility of setting aside an award decision that has been challenged or, reversely, to lift the suspension of the contract-making powers of the contracting authority following such a challenge under reg.95 PCR2015. In any case, however, the adoption of interim measures cannot shorten the mandatory non-litigation related stand-still period (Alcatel stand-still) [reg.96(4)], and the limited scope of the interim measures foreseen in reg.96 PCR2015 does not prejudice any other powers of the Court [reg.96(5) PCR2015].

When it comes to interim measures concerned with the suspension of the contract-making powers of the contracting authority under reg.95(1) PCR2015, reg.96(1) PCR2015 clearly foresees that the Court may, where relevant, make an interim order bringing it to an end, as well as an order restoring or modifying that requirement [reg.96(1)(a) and (b)]. In order to do so, ie in order to bring the litigation-related stand-still obligation to an end, the Court must consider whether, if reg.95(1) PCR2015 were not applicable, it would be appropriate to make an interim order requiring the contracting authority to refrain from entering into the contract; and only if the Court considers that it would not be appropriate to make such an interim order may it make an order to bring it to an end [reg.96(2)]. 

For discussion of the highly contentious issue of the lifting of the automatic suspension obligation (now) derived from reg.95(1) PCR2015, see L Wisdom, "United Kingdom: automatic suspensions in the TCC: the cases of NATS and Group M" (2015) Public Procurement Law Review NA44-50; R Ashmore, "Fresh hope for a fresh award but realism must prevail: High Court upholds automatic suspension on contract-making in a public procurement action but finds no illegal award or material variation: R (Edenred (UK Group) Limited) v HM Treasury and others" (2015) Public Procurement Law Review NA88-93; and L Wisdom, "Another automatic suspension lifted in the TCC: Solent NHS Trust v Hampshire County Council" (2015) Public Procurement Law Review NA140-143. All these comments stress the link between lifting the suspension and confining the remedies available to the claimant to a compensation for damages (which will be discussed regarding regs.97 and 98).

The Court can also make an interim order suspending the procedure leading to the award of the contract, or the determination of the design contest, in relation to which the breach of the duty owed in accordance with reg.89 or 90 PCR2015 is alleged [reg.96(1)(c)]; or suspending the implementation of any decision or action taken by the contracting authority in the course of following such a procedure [reg.96(1)(d) PCR2015].

Reg.96(3) opens the possibility for the Court to require or impose undertakings or conditions in relation to the requirement to suspend the contract-making powers of the contracting authority [Pedro offers some example in his post]. Its drafting is unnecessarily complex and may seem to limit the possibility to impose undertakings or conditions to cases linked to reg.95(1) PCR2015, which would make no sense because the tenor of that regulation is unconditional. Hence, in my view, the Court has full powers to impose undertakings or conditions whenever it considers them appropriate and the contract-making powers of the contracting authority are suspended (or remain suspended) as a result of the interim order.