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Legal Remedies for Breach of the Rules

If an organisation does not comply with procurement law then those who have suffered, or risk suffering, loss can seek legal remedies.

Remedies can include the altering of procurement documents, damages, financial penalties and a ruling that a contract is ineffective, depending on the category of breach and its seriousness.  Remedies are enforceable in the Court of Session and Sheriff Courts.

Suppliers have had the right to raise an action in the courts as a part of public procurement legislation for many years.  However, the remedies available to a supplier changed significantly with the introduction of the 2007 Remedies Directive (2007/66/EC) and this remedies regime has been in force in Scotland since 20 December 2009.

The current remedies regime will continue to apply to procurements regulated under the Public Contracts (Scotland) Regulations 2015, the Utilities Contracts (Scotland) Regulations 2016 and the Concession Contracts (Scotland) Regulations 2016.

In addition to this, the Procurement Reform (Scotland) Act 2014 introduces legal remedies which apply to regulated procurements which are not also EU-regulated procurements.

The table below outlines the applicable remedies rules relating to pre and post 18 April 2016 public procurement.

 

Pre 18 April 2016
Post 18 April 2016
Remedies
 
 
 
Regulation of Public Contracts (Scotland) Regulations 2012
Regulated procurements
EU –regulated procurements
Sections of the Procurement Reform (Scotland) Act 2014
Regulation of The Public Contracts (Scotland) Regulations 2015
Regulation of The Utilities Contracts (Scotland) Regulations 2016
Regulation of The Concession Contracts (Scotland) Regulations 2016

Duty owed to economic operators

Regulation 47(1) – (4)

Section 37(2)(b)

Regulation 87

Regulation 100

Regulation 51

Who can bring court proceedings

Regulation 47(5)

Section 37(2)(a) and (c)

Section 37(3)

Regulation 88(1)

Regulation 101(1)

Regulation 52(1)

Where can court proceedings be brought

Regulation 47(5)

Section 38(1)

Regulation 88(2)

Regulation 101(2)

Regulation 52(2)

Requirement to notify the contracting authority of court proceedings

Regulation 47(6)

Section 38(2)

Regulation 88(3)

Regulation 101(3)

Regulation 52(3)

Timescales for bringing court proceedings

Regulation 47(7) and (8)

Section 38(3)

Regulation 88(4) and (5)

Regulation 101(4) and (5)

Regulation 52(4) and (5)

Automatic suspension of contract award if court proceedings are brought

Regulation 47(9)           

N/A

Regulation 89

Regulation 102

Regulation 53

Interim order suspending:

  • the procurement procedure
  • the implementation of any decision or action taken in relation to that procedure

Regulation 48(1)(a) and (2)

Section 39(2) and (3)

Regulation 90(1)(a) and (2)

Regulation 103(1)(a) and (2)

Regulation 54(1)(a) and (2)

Available remedies:

  • order the setting aside of a decision or action
  • order the contracting authority to amend any document
  • award damages for loss or damage suffered
  • shorten the duration of contract or framework agreement
  • ineffectiveness orders
  • financial penalties

Regulation 48 – 50

Section 39(4) and (5)

Regulation 90 – 95

Regulation 103 – 108

Regulation 54 – 59*

 

 

 

 

 

 

 

 

 

 

* Please note that the third ground of ineffectiveness is not applicable to for concessions contracts under the Concessions Contracts (Scotland) Regulations 2016.