Duty owed to economic operators from EEA states under Reg. 89 Public Contracts Regulations 2015

Reg.89 of the Public Contracts Regulations 2015 (PCR2015) sets the duty owed to economic operators from EEA states, whereby contracting authorities are required to comply with the provisions of Part 2 PCR2015; and any enforceable EU obligation in the field of public procurement in respect of a contract or design contest falling within the scope of Part 2 PCR2015. Reg89(2) PCR2015 explicitly states that such obligation is a duty owed to an economic operator from the United Kingdom or from another EEA state. 

For a continental lawyer, this is a regulation that does not make much sense and that seems superfluous. Under general conceptions of public law (at least in Spain and in other countries based on the French system of public law and public administration), public bodies (and other contracting entities governed by public law) must abide by the law and any infringement can result in individual rights to claim for any negative consequences of such a procedural or substantive breach. 

On the contrary, as far as I understand it, under English (and Welsh?) public/administrative law, individuals and undertakings only have a claim against the public sector if it breaches a duty owed to them. This has been made quite clear in a recent opinion of Lord Reed, in a recent Supreme Court decision where he stressed that:
A public authority can violate the rule of law without infringing the rights of any individual: if, for example, the duty which it fails to perform is not owed to any specific person, or the powers which it exceeds do not trespass upon property or other private rights. A rights-based approach to standing is therefore incompatible with the performance of the courts’ function [on review] of preserving the rule of law ... [AXA General Insurance Ltd. v HMAdvocate [2011] UKSC 46, [2012] 1 A.C. 868 at [169]–[170]; apud JNE Varuhas, “The Reformation of English Administrative Law? “Rights”, Rhetoric and Reality” (2013) 72 Cambridge Law Journal 369-413, 382; emphasis added].
Consequently, reg.89 PCR2015 is the cornerstone of the system of remedies envisaged in Chapter 6 PCR2015, as it creates the rights to claim on the basis of a breach of such duty for economic operators from EEA states. The extension of such duty (and ensuing right to claim) to economic operators from certain other states is established in reg.90 PCR2015, which will be discussed tomorrow.

The existence of broader possibilities to challenge procurement-related decisions without the coverage of a duty owed under regs.89 and 90 PCR2015 is a contentious issue under English law. For discussion, see SH Bailey, "Reflections on standing for judicial review in procurement cases" (2015) 24(4) Public Procurement Law Review 122-132. See also P Henty, "Can a trade union judicially review a breach of the PCRs?: R. (on the application of Unison) v NHS Wiltshire Primary Care Trust and others" (2012) 21(4) Public Procurement Law Review NA203-207; and SH Bailey, "Contracting and judicial review: R. (on the application of A) v Chief Constable of B Constabulary" (2013) 22(4) Public Procurement Law Review NA106-108.