Facilitation of remedies under regs.85 to 87 Public Contracts Regulations 2015

Regs.85 to 87 of the Public Contracts Regulations 2015 (PCR2015) establish rules for the facilitation of remedies. They create both an obligation to issue notices of decisions to award a contract or conclude a framework agreement [reg.86] and to comply with a standstill period prior to entering into the contract or concluding the framework agreement [reg.87]. 

These regulations are not a result of the transposition of Directive 2014/24, but rather of Directive 89/665 as amended by Directive 2007/66 [for discussion, see the contributions to S Treumer & F Lichere (eds), Enforcement of the EU public procurement rules (Copenhagen, DJØF, 2011)]. Indeed, as stressed in the Explanatory Memorandum of the PCR2015, "[t]hese Regulations also re-enact the relevant provisions of the Remedies Directives (Directive 89/665/EEC as amended by Directive 2007/66/EC), on remedies and review procedures for public procurement, as implemented by the UK in the Public Contracts Regulations 2009" (para 2.1). 

In that regard, the Explanatory Memorandum also clarifies that "[t]he general approach has been to move the existing remedies rules from the 2006 Regulations into this instrument, with only comparatively minor amendments, including adjustments necessary to mesh with the new Regulations overall and some minor drafting improvements. However, we have taken the opportunity to provide for the remedies to be available not only to economic operators from non-EEA countries where covered by the WTO Agreement on Government Procurement (which the 2006 Regulations did) but also to those from other third countries where required by any other international agreement by which the EU is bound" (para 7.3). Consequently, there are no significant changes resulting from regs.85 to 87 PCR2015.

Reg.85 PCR2015 simply determines that the remedies regulated in Part 3 PCR2015 only apply to contracts covered by Part 2, ie contracts with a value above the EU thresholds [see regs. 3 and 5 PCR2015].

Notices under reg.86 PCR2015
Reg.86 PCR2015 creates an obligation for contracting authorities to send to each candidate and tenderer [as defined in reg.86(7) and (8)] a notice communicating its decision to award the contract or conclude the framework agreement [reg.86(1)]. The content of those notices is detailed in reg.86(2) to (5) PCR2015. This is the set of requirements that aim to provide the candidate or tenderer with sufficient information for it to assess whether to challenge the award decision, ultimately as a guarantee of their right effective judicial protection under Article 47 of the Charter of Fundamental Rights of the European Union (see here)

In my view, they are the crux of the problem of excessive disclosure of information in the public procurement setting, particularly in view of the obligation to disclose the name of the tenderer to be awarded the contract, or to become a party to the framework agreement [reg.86(2)(c) PCR2015; see discussion in A Sanchez-Graells, The Difficult Balance between Transparency and Competition in Public Procurement: Some Recent Trends in the Case Law of the European Courts and a Look at the New Directives (University of Leicester School of Law Research Paper No. 13-11, 2013) and here]. 

In that regard, it is important to stress that reg.86(6) PCR2015 creates a straightforward exception to disclosure of certain information whereby a contracting authority may withhold any information where the release of such information (a) would impede law enforcement or would otherwise be contrary to the public interest; (b) would prejudice the legitimate commercial interests of a particular economic operator, whether public or private; or (c) might prejudice fair competition between economic operators. This is coincidental with the same exception in reg.55(3) PCR2015 (see my comments on the use of such exception here). Pedro has a very different view and considers that "price disclosure should be part of the cost ... for suppliers to work in public procurement". I strongly disagree with him on this point, not least, because the actual cost of excessive transparency is unavoidably borne by contracting authorities and, ultimately, tax payers.

In my view, a proper understanding of the exception in reg.86(6) PCR2015 and the way it should be interpreted and applied, in conjunction with reg.18(2) and (3) PCR2015 establishing the principle of competition, is fundamental to avoid the current excess of transparency in public procurement and its knock-on effect on the ease of cartelisation of public procurement markets. Hence, contracting authorities will be well-advised to adopt strategies that minimise disclosure of information where possible and proportionate, so that competition is not damaged and incentives to collusion and bid rigging are not exacerbated [for background, see A Sanchez-Graells, “Prevention and Deterrence of Bid Rigging: A Look from the New EU Directive on Public Procurement”, in G Racca & C Yukins (eds), Integrity and Efficiency in Sustainable Public Contracts (Brussels, Bruylant, 2014) 171-198].

Reg.86(5) PCR2015 sets more limited exceptions whereby contracting authorities need not comply with reg.86(1) in any of the following cases: (a) where the contract or framework agreement is permitted by Part 2 to be awarded or concluded without prior publication of a contract notice; (b) where the only tenderer is the one who is to be awarded the contract or who is to become a party to the framework agreement, and there are no candidates; (c) where the contracting authority awards a contract under a framework agreement or a dynamic purchasing system. Regarding the latter exception, it is worth stressing that the opacity it creates regarding the working of framework agreements and dynamic purchasing systems may be excessive and that a system of quarterly reporting would be preferable (see here and, in relation to reg.50 PCR2015, here).

Standstill under reg.87 PCR2015
Reg.87 PCR2015 establishes the so called Alcatel standstill obligation for contracting authorities not to enter into the contract or framework agreement subjected to a reg.86 notice until a period of 10 or 15 days has elapsed, depending on the means of communication used to send the notices to the interested candidates and tenderers. 

For discussion of the specific rules on calculation of those time and the UK (Eng & W) case law on this topic, see M Trybus, "An Overview of the United Kingdom Pubic Procurement Review and Remedies System with an Emphasis on England and Wales", in S Treumer & F Lichere (eds), Enforcement of the EU public procurement rules (Copenhagen, DJØF, 2011) 201, 216-17; and  LRA Butler, "Below Threshold and Annex IIB Service Contracts in the United Kingdom: A Common Law Approach", in D Dragos & R Caranta (eds), Outside the EU procurement directives - Inside the Treaty? (Copenhagen, DJØF, 2012) 283, 326-29].