The Remedies Regulations which make provision for aggrieved bidders to challenge public contract award procedures have been amended following a recent Supreme Court judgment. Under the Remedies Regulations, an aggrieved bidder may apply to the Court for an order either to correct alleged infringements in the award procedure during its course, or to review the contracting authority’s decision to award the contract to a particular bidder at the end of the procedure. The Supreme Court confirmed that either of these applications operates to automatically suspend the award of the contract, i.e. the contracting authority must not proceed to conclude the contract once such an application is made. The Supreme Court then considered, in respect of each type of application, whether a contracting authority could apply to the court to lift the automatic suspension. It held that a contracting authority can only do so in the context of an application to correct alleged infringements during the course of an award procedure. It cannot do so in the context of an application to review a contracting authority’s decision to award the contract to a particular bidder at the end of the procedure. In the latter case, the automatic suspension must remain in place until the substantive case is resolved or otherwise disposed of. The Remedies Regulations have now been amended to clarify this distinction.
Contributed by Sheila Tormey.
