September - Legal Protection Directive
End of December 2009 – Implementation Legal Protection Directive regarding public contracts
Since December 20, 2009 in the whole European Union the implementation of the new Legal Protection Directive (2007/66/EC) for enterprises regarding the awarding of public contracts has taken effect.
The most notable consequences are:
1. Art. 6 offers the opportunity of a claim by a harmed entrepreneur to declare the agreement nonbinding until 6 months after the awarding of the public contract if:
a. the public contract has not with prior notice been published in the Official Journal of the EUb. the public contract has been awarded before the expiration of the obligatory suspension period of at least 10 days after the preliminary awardingc. the public contract has been awarded before a decision has been made by the court after preliminary injuctions have been instituted by an entrepreneur.
2. Art. 8 says that art. 6 does not apply if a judge acknowledges an imperative rule of public interest as meant in the Directive. This will not be easily the case; at least financial grounds are excluded and all deviations must be reported to the European Commission.
3. To demand the annulment of the agreement the entrepreneur has to demand the nonbindingness of the contract within 6 months after the awarding by the contracting authority
Provisional conclusion for governments: "In case of doubts, transparancy!”, in other words prior notice in case of an intention to award a contract privately, prevents annulment afterwards!
For more information contact Mr Ulbo Faber, tendering lawyer and managing director of Multum Interest.