Remedies mechanisms : water, energy, transport and postal services sectors

A Community system of remedies relating to the award of contracts in the water, energy, transport and postal services sectors allows injured parties to protect their interests.

This Directive seeks to guarantee the effective application of the provisions of Directive 2004/17/EC coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors.

The provisions of the Directive are based on three main elements:

– adaptation to the water, energy, transport and postal services sectors (the so-called “special” sectors) of the redress mechanisms available under Directive 89/665/EEC concerning national remedies relating to public supply, works and service contracts awarded by the contracting authorities;
– an attestation procedure;
– a corrective mechanism to strengthen the lines of action open to the Commission in cases where a clear and manifest infringement has been committed.

In the case of certain redress mechanisms, the Directive empowers the Member States to choose between two options . They may take measures to permit:

– either direct intervention in the procurement procedures to suspend those procedures and repeal any illegal decisions;
– or the exercising of an indirect influence on contracting entities through the specific imposition of a financial penalty.

In both instances the aim is to ensure that any infringements of the law are corrected and that the relevant interests are protected. Independently of the option chosen, the Directive provides for the possibility of obtaining damages and interest.

Remedies

The Directive states that where a contract award infringes the procedures, any person who is harmed or is likely to suffer damage may apply for an effective review of the decision taken by the contracting entity. To this end, the following time limits are laid down:

– at least 15 days (or 10 days if electronic means are used) between the award decision and the conclusion of the contract;
– a maximum of 15 days (or 10 days if electronic means are used) between the decision by the contracting entity and the application for review (however, enforcement of this period remains at the discretion of the Member State);
– 30 days between the decision to award the contract and cancellation of this decision;
– maximum of six months between conclusion of the contract and cancellation of the award decision.

Attestation

The contracting entity may award the contract without prior publication of a notice in the Official Journal of the European Union. However, it must publish its intention to award the contract.

The Advisory Committee for Public Contracts assists the Commission.

Corrective mechanism

Where the Commission feels that a clear and manifest infringement of the Community provisions has been committed in the course of the procurement procedure, it may ask the Member State to correct the infringement, referring to the review and the ineffectiveness of a contract before it is concluded.