Regulation 96 – Interim orders

Commentary

Regulation 96 PCR2015 establishes rules for the adoption of interim measures aimed at securing the possibility of setting aside an award decision that has been challenged or, reversely, to lift the suspension of the contract-making powers of the contracting authority following such a challenge under Regulation 95 PCR2015. This Regulation enables the Court to make interim orders while the main judicial procedure is taking place and before the final decision is produced. In any case, however, the adoption of interim measures cannot shorten the mandatory non-litigation related stand-still period (Alcatel stand-still) (Regulation 96(4)), and the limited scope of the interim measures foreseen in Regulation 96 PCR2015 does not prejudice any other powers of the Court (Regulation 96(5) PCR2015).

There are essentially three types of orders (discussed in more detail below). As the first one, the Court may either annul, restore or modify the standstill ban imposed by Regulation 95(1) PCR2015 on contract signing and performance. The Court may as well decide to impose an interim order with similar effects, although it cannot do so before the end of the standstill period. Additionally, the Court may as well suspend the procedure leading to the award of the contract or the determination of the design contest in case a breach of Regulations 89/90 duty towards EEA/GPA economic operators is alleged. Although neither framework agreements nor dynamic purchasing systems are not mentioned explicitly, we suppose that those would be covered as well under a wide interpretation of “contract”. The final type of interim order is a sort of a “catch all” allowing the Court to suspend the implementation of any decision/action by the contracting authority, implying that any decision taken during a public procurement procedure can be suspended.

When it comes to interim measures concerned with the suspension of the contract-making powers of the contracting authority under Regulation 95(1) PCR2015, Regulation 96(1) PCR2015 clearly foresees that the Court may, where relevant, make an interim order bringing it to an end, as well as an order restoring or modifying that requirement (Regulation 96(1)(a) and (b)). In order to bring the litigation-related stand-still obligation to an end, the Court must consider whether, if Regulation 95(1) PCR2015 were not applicable, it would be appropriate to make an interim order requiring the contracting authority to refrain from entering into the contract; and only if the Court considers that it would not be appropriate to make such an interim order may it make an order to bring it to an end (Regulation 96(2)). As an example of an interim order which was kept under the old Public Contracts Regulations 2006, there is the recent Bristol Missing Link Ltd v Bristol City Council [2015] EWHC 866 (TCC).

For discussion of the highly contentious issue of the lifting of the automatic suspension obligation (now) derived from Regulation 95(1) PCR2015, see L Wisdom, “United Kingdom: automatic suspensions in the TCC: the cases of NATS and Group M” (2015) Public Procurement Law Review NA44-50; R Ashmore, “Fresh hope for a fresh award but realism must prevail: High Court upholds automatic suspension on contract-making in a public procurement action but finds no illegal award or material variation: R (Edenred (UK Group) Limited) v HM Treasury and others” (2015) Public Procurement Law Review NA88-93; and L Wisdom, “Another automatic suspension lifted in the TCC: Solent NHS Trust v Hampshire County Council” (2015) Public Procurement Law Review NA140-143. All these comments stress the link between lifting the suspension and confining the remedies available to the claimant to a compensation for damages which will be discussed regarding Regulations 97 and 98.

The Court can also make an interim order suspending the procedure leading to the award of the contract, or the determination of the design contest, in relation to which the breach of the duty owed in accordance with Regulation 89 or 90 PCR2015 is alleged (Regulation 96(1)(c)); or suspending the implementation of any decision or action taken by the contracting authority in the course of following such a procedure (Regulation 96(1)(d) PCR2015).

Regulation 96(3) opens the possibility for the Court to require or impose undertakings or conditions in relation to the requirement to suspend the contract-making powers of the contracting authority. Its drafting is unnecessarily complex and may seem to limit the possibility to impose undertakings or conditions to cases linked to Regulation 95(1) PCR2015, which would make no sense because the tenor of that regulation is unconditional. Hence, the Court has full powers to impose undertakings or conditions whenever it considers them appropriate and the contract-making powers of the contracting authority are suspended (or remain suspended) as a result of the interim order.

Last modified: December 6, 2016 by Pedro Telles

96.—(1) In proceedings, the Court may, where relevant, make an interim order—

(a)bringing to an end the requirement imposed by regulation 95(1);

(b)restoring or modifying that requirement;

(c)suspending the procedure leading to—

(i)the award of the contract, or

(ii)the determination of the design contest,

in relation to which the breach of the duty owed in accordance with regulation 89 or 90 is alleged;

(d)suspending the implementation of any decision or action taken by the contracting authority in the course of following such a procedure.

(2) When deciding whether to make an order under paragraph (1)(a)—

(a)the Court must consider whether, if regulation 95(1) were not applicable, it would be appropriate to make an interim order requiring the contracting authority to refrain from entering into the contract; and

(b)only if the Court considers that it would not be appropriate to make such an interim order may it make an order under paragraph (1)(a).

(3) If the Court considers that it would not be appropriate to make an interim order of the kind mentioned in paragraph (2)(a) in the absence of undertakings or conditions, it may require or impose such undertakings or conditions in relation to the requirement in regulation 95(1).

(4) The Court may not make an order under paragraph (1)(a) or (b) or (3) before the end of the standstill period.

(5) This regulation does not prejudice any other powers of the Court.