Ireland has implemented the EU Remedies Directive which gives greater protection to parties seeking to challenge the award of public contracts, but significantly reduces the time limit within which they may do so.
Implementation has been overdue since December 2009 and Ireland has been criticised in a number of recent cases before the European Court of Justice for failing adequately to protect the rights of aggrieved tenderers – see William Fry Legal News March 2010. The new rules apply to all decisions taken from 25 March 2010, regardless of when the procurement process commenced.
The main features of the new rules are:
Clarification of the “standstill period” between a decision to award a contract and conclusion of the contract: the period of 16 days (14 days if information is provided by fax or e-mail) now commences on the day after tenderers are provided with certain minimum information on the outcome of their applications.
Reduction of time limits for challenging procurement decisions: applications for judicial review or for injunctive relief must be taken within 30 calendar days of the applicant being notified of the relevant decision or of knowledge of the alleged infringement. An application for a declaration that a contract is ineffective must be made within 30 calendar days of notice of the authority’s decision to award a contract (whether directly or by means of a notice published in the Official Journal of the EU). If no notice is given, the period is extended to six months. These time limits represent a significant reduction from the previous regime and underline the need for aggrieved bidders to take early action to protect their interests.
Expansion of remedies available: the High Court may make a range of orders, including setting aside or varying a contracting authority’s decision, declaring a contract that has been concluded ineffective, and awarding damages. The new rules also provide for the automatic suspension of award processes in certain circumstances. In addition, a new power has been introduced allowing the High Court to impose a civil financial penalty on the contracting authority of up to 10 per cent of the value of the contract, even if the contract has not been overturned.
The new rules provide a clearer framework for the judicial review of public contracts and should provide a further incentive for contracting authorities to act transparently and correctly. However, more then ever it is imperative for aggrieved parties to act swiftly to protect their rights.
