Regulation 94 – Starting proceedings

Commentary

Regulation 94 PCR2015 establishes rules for starting proceedings under Chapter 6 PCR2015. Generally, the economic operator must serve the claim form on the contracting authority within 7 days after the date of issue where proceedings are started (Regulation 94(1). For these purposes, “serve” means serve in accordance with rules of court, and for the purposes of this regulation a claim form is deemed to be served on the day on which it is deemed by rules of court to be served (Regulation 94(5)).

However, there is a requirement for speedier service of the claim where ineffectiveness or a prohibition on concluding a not yet performed contract are involved; ie where a declaration of ineffectiveness is being sought or a breach of Regulations 87, 95 or 96(1)(b) when the contract is yet to be fully performed. This covers cases where proceedings are started (i) seeking a declaration of ineffectiveness, or (ii) alleging a breach of (a) the standstill period imposed in Regulation 87 PCR2015, (b) suspension derived from a challenge to the award decision as per Regulation 95 PCR2015, or (c) an obligation derived from an interim measure restoring or modifying the requirement to suspend as per Regulation 96(1)(b) PCR2015, where the contract has not been fully performed (Regulation 94(2) PCR2015).

In those cases, the economic operator must, as soon as practicable, send a copy of the claim form to each person, other than the contracting authority, who is a party to the contract in question (Regulation 94(3) PCR2015). In that regard, the contracting authority must, as soon as practicable, comply with any request from the economic operator for any information it may reasonably require for the purpose of complying such a duty to send a copy of the claim form to each person, other than the contracting authority, who is a party to the contract in question (Regulation 94(4) PCR2015).

These requirements make sense, given the relevance of ensuring that contracts are not executed when they are affected by a significant risk of ineffectiveness.

Last modified: December 6, 2016 by Pedro Telles

94.—(1) Where proceedings are started, the economic operator must serve the claim form on the contracting authority within 7 days after the date of issue.

(2) Paragraph (3) applies where proceedings are started—

(a)seeking a declaration of ineffectiveness; or

(b)alleging a breach of regulation 87, 95 or 96(1)(b) where the contract has not been fully performed.

(3) In those circumstances, the economic operator must, as soon as practicable, send a copy of the claim form to each person, other than the contracting authority, who is a party to the contract in question.

(4) The contracting authority must, as soon as practicable, comply with any request from the economic operator for any information that the economic operator may reasonably require for the purpose of complying with paragraph (3).

(5) In this regulation, “serve” means serve in accordance with rules of court, and for the purposes of this regulation a claim form is deemed to be served on the day on which it is deemed by rules of court to be served.