So far, the enforcement regime has favoured public authorities to such an extent that they may have become complacent.  The aggrieved bidder finds that it is difficult to make a claim because of the tight time limits.  In the case of illegal direct awards, by the time that the tenderer becomes aware of a breach of the Rules it may be too late to make the claim.  This may change.  Public authorities may in future take a much greater risk if they do not comply with the Rules.  The change comes from two directions:  disgruntled bidders are increasingly likely to challenge contract award decisions and Brussels is planning to reform the current enforcement system.

The current regime in the UK

A potential claimant under the Rules faces two problems under the current regime.  Firstly, it needs to obtain the information to evaluate whether it has a claim and secondly it must make the claim within very strict time limits.  Public authorities which have been complacent in their attitude towards procurement have often felt protected by the sheer difficulty for bidders of making a claim.

If an aggrieved bidder has been part of the bid process then the public authority is, in effect, required by statute to send it notification that it has failed in its bid.  The Rules give guidance on what should be included in the notice: the criteria used for the award; if practicable the score of the successful bidder; and the score of the recipient of the letter (but not of any other unsuccessful bidders).  There then follows a period of 10 days from the date of the decision to award the contract within which any claims must be brought and before the public authority can actually award it.  However, the procurement rules (both at EU and UK level) do not currently deal comprehensively with what may happen if the public authority fails to send out the required notice, or to run a competitive procedure, but instead awards the contract directly, or otherwise without justification.

Gathering information for a claim

• During the standstill period, information for a claim may be gathered by a bidder requesting a debrief from the public authority who should ensure that the amount of information that is given is adequate (failure of a public authority to provide adequate information was found in a recent case to be a ground for the court to suspend a contract award)
  
• Debrief requests need to be made very quickly (before midnight on the second working day after the date of despatch of the notice of the award decision) 
  
• Another method of gathering information is to submit a Freedom of Information Act (FOIA) request to the relevant public authorities.  FOIA requests can flag to public authorities that there are potential problems on the horizon. Care should be taken: they should be handled as part of an overall strategy of dealing with a challenge to a contract award rather than on an ad hoc basis. 

The claim

After giving the debrief, the public authority must wait three working days before it enters into the contract in order to allow the aggrieved bidder to demonstrate to a court that it has an arguable case i.e. it could have been the successful tenderer.  Only then will the Court consider suspending the award decision.

Irrespective of whether the claim is for damages or a review of the contract award, the claimant has to let the public authority know that it is making a claim for breach of the procurement rules and must make the claim as quickly as possible.  The procurement rules specify that claimants must bring claims "promptly and in any event within 3 months".  The courts have put the emphasis on "promptly".  Even if a claim is made within 3 months and it could have been made earlier, the court may strike the claim out.

Reform

Brussels has identified three key weaknesses with the current regime of enforcement:

• There is too heavy a reliance on damages as the main remedy for failure of public authorities and utilities to follow the Rules
  
• The effectiveness of pre-contractual review is inconsistent between member states and
  
• Illegally directly awarded contracts are  "the most serious breach of Community law in the field of public procurement"

The European Commission (following the European Parliament's first reading) has proposed changes to the current regime to address these weaknesses.  The key features of the Commission's proposals are:

• Contracts concluded in breach of the standstill period or illegally directly awarded contracts will be automatically ineffective subject to a maximum limitation period of 6 months for bringing claims
• The provisions will apply to directly awarded contracts as well as contracts following a tender process
• Contract signature will be suspended (subject to the notice requirement) for 10 days (or 15 days depending on method of communication) from the decision to award the contract.  Within this timescale the bidder may apply for information on the bid

(Note – the standstill period and  provisions on directly awarded contracts are intended to apply to all contracts covered by the Rules including those where the Rules only have limited application (part B services).  These reforms however, will not apply to sub-threshold contracts).

• The new provisions will not apply to contracts awarded under a framework agreement  with single or multiple suppliers. (They will of course apply to the initial framework agreement); and
• The public authority will have 15 days to provide information to the bidder after the request and the suspension of contract conclusion will continue for a maximum of 5 working days following the public authority's response.  This 5 day period is meant to give the applicant sufficient time to make an application  to a review body (which will be the High Court in the UK) for a continuation of the suspension, but in practice there will not be sufficient time.