Regulation 93 – Special time limits for seeking a declaration of innefectiveness

Commentary

Regulation 93 PCR2015 establishes special time limits for seeking a declaration of ineffectiveness. In this case, proceedings still need to be started within 30 days (Regulation 93(2)(a)), but the relevant time when the clock starts ticking changes (see below). In any event, though, proceedings must be started within 6 months beginning with the day after the date on which the contract was entered into (Regulation 93(2)(b)). For these purposes, proceedings are to be regarded as started when the claim form is issued (Regulation 93(7) PCR2015). Therefore, the general rule is that ineffectiveness can be sought up to 6 months after the contract was entered into, except in two specific cases in which potential claimants can be seen as possessing specific information that triggers their duty to start procedures within 30 days from the relevant fact.

The first case concerns procedures where a relevant contract award notice has been published in the Official Journal of the European Union, in which case the relevant date is the day after the date on which the notice was published (Regulation 93(3)). This first ground only applies if the contract award notice was published in the Official Journal and referred to a contract that was awarded without a prior publication of a contract notice and the contract award notice includes justification of the decision to award the contract. For that purpose, a contract award notice is relevant if, and only if the contract was awarded without prior publication of a contract notice; and the contract award notice includes justification of the decision of the contracting authority to award the contract without prior publication of a contract notice (Regulation 93(4) PCR2015). This raises a big issue of discoverability as the “obligation” of publishing contract award notices in the Official Journal is seldom complied with. In consequence it may be pretty much impossible to know a contract without prior publication of notice was ever awarded. Additionally, paragraph 2 caps the duration of the time limit period to a maximum of 6 months “from the date the contract was entered into”.

The second case concerns procedures where the contracting authority has informed the economic operator of the conclusion of the contract, and a summary of the relevant reasons, in which case the relevant date is the day after the date on which the economic operator was informed of the conclusion or, if later, was informed of a summary of the relevant reasons (Regulation 93(5)).  Such “relevant reasons” means the reasons which the economic operator would have been entitled to receive in response to a request under Regulation 55(2) PCR2015 (Regulation 93(6)). Contrary to Regulation 92 PCR2015 the trigger to start this time limit is not the sending of the information but its actual receipt. The same caveat as with the first ground above remains however: what happens if the contracting authority does not comply with this requirement of providing the relevant reasons? In any case the 6 month cap will always be in place.

Last modified: December 6, 2016 by Pedro Telles

93.—(1) This regulation limits the time within which proceedings may be started where the proceedings seek a declaration of ineffectiveness.

(2) Such proceedings must be started—

(a)where paragraph (3) or (5) applies, within 30 days beginning with the relevant date mentioned in that paragraph;

(b)in any event, within 6 months beginning with the day after the date on which the contract was entered into.

(3) This paragraph applies where a relevant contract award notice has been published in the Official Journal, in which case the relevant date is the day after the date on which the notice was published.

(4) For that purpose, a contract award notice is relevant if, and only if—

(a)the contract was awarded without prior publication of a contract notice; and

(b)the contract award notice includes justification of the decision of the contracting authority to award the contract without prior publication of a contract notice.

(5) This paragraph applies where the contracting authority has informed the economic operator of—

(a)the conclusion of the contract, and

(b)a summary of the relevant reasons,

in which case the relevant date is the day after the date on which the economic operator was informed of the conclusion or, if later, was informed of a summary of the relevant reasons.

(6) In paragraph (5), “the relevant reasons” means the reasons which the economic operator would have been entitled to receive in response to a request under regulation 55(2).

(7) For the purposes of this regulation, proceedings are to be regarded as started when the claim form is issued.