Part 9 of the Procurement Act outlines remedies for breaches of statutory duty, including formal challenges in the High Court, automatic suspensions during the standstill period, and contract set-aside provisions
Review system
The route to a formal challenge under the Act remains the same as under the previous regime: a claim in the High Court.
Certain limited duties of authorities under the Act (eg the duty under section 12(4) to consider barriers to SMEs and the duty under section 13(9) and section 14(8) to have regard to the National Procurement Policy Statement) are not enforceable in the High Court.
Similarly, any breach by an authority of the provisions of Part 6 around Below-Threshold Contracts, is not enforceable in the High Court.
Otherwise, any breach by an authority could potentially be challenged in the Court by a supplier under this part.
The time limits for bringing damages claims remain the same under the Act, ie 30 days from the date that the supplier knew or ought to have known of the breach. It remains the case that suppliers have limited time in which to obtain information from authorities and assess the merits of any potential challenge.
Automatic suspension
Section 102 empowers the court to make a variety of interim orders.
For example, lifting the auto-suspension, or extending it, suspending the procurement, suspending contract performance, suspending the making of a contract modification.
Section 102(2) sets out a new test for the court to apply in deciding how to exercise these powers:
- Having regard to the public interest
- Having regard to the interest of suppliers (including whether damages are an adequate remedy for the supplier)
- Considering any other appropriate matters
Interestingly, under the Act, an automatic suspension is only available if a supplier starts a claim during the 8-day standstill period, rather than at any time up to contract signature, as was previously the case. If a supplier wishes to invoke the automatic suspension, it must commence the claim before the end of the standstill period.
Government guidance on Remedies is available here.
Standstill Period
Section 51 provides for a new 8-working day standstill period. This commences on the date of publication of a Contract Award Notice (or a Contract Change Notice where a voluntary standstill is being held prior to making a contract change).
Government guidance on Standstill Periods is here.
Click here to use our Procurement Act 2023 Standstill Calculator.
Contract set aside
Under the Act, ineffectiveness is now known as contract set aside. It remains available in the same three circumstances as under the PCR 2015.
Section 104 confirms that, where a framework agreement is set aside, this does not then automatically set aside all contracts called off under it.
One of the time limits for bringing a set aside claim is slightly different. Currently where a contract award notice is published, the time limit for an ineffectiveness claim is 30 days from the date of that notice. Under the Act, it's 30 days from the date that the supplier knew or ought to have known of the breach giving rise to the set aside claim.
The publication of a contract award notice and holding of a standstill period with no claim brought in that period remains a defence to a set-aside claim.
Confused by all the new Notices under the Act?
Don't despair - our Notices Generator is here to help. Just as with our Standstill Calculator, answer a few simple questions and watch it generate a printable report setting out which notices are mandatory and optional for your procurement.
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