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Public
Procurement - EU Commission requests Ireland to review procedures
for unsuccessful tenderers.
The
EU Commission recently decided to issue Ireland with a reasoned
opinion for the failure by Ireland to fully comply with
the requirements of Directive 89/665/EEC (Remedies Directive)
on public procurement.
The
Remedies Directive obliges each member state to ensure that
effective remedies and means of enforcement are made available
to suppliers, contractors and service providers in the Courts
of the member states where these suppliers, contractors
and service providers believe that they have been harmed
as a consequence of a breach of the public procurement rules.
Under the existing legislation in Ireland proceedings alleging
a breach of the EU Procurement Rules must be brought in
the High Court. Available remedies include;
In
addition to these remedies, aggrieved parties may also bring
an application before the High Court, seeking judicial review
of the decisions complained of, which must be brought within
tight timeframes.
It is the Commission's view that current Irish legislation
does not fully comply with the requirement to establish
review procedures permitting a decision to award a public
contract to be suspended or put to one side at a point in
time when the infringement complained of can still be rectified.
The
European Court of Justice has stipulated that member states
were required to set up such review procedures. The object
of this requirement is that aggrieved tenderers should be
allowed to seek to have a contracting authorities decision
suspended by way of interim measures and set aside notwithstanding
that it could maintain a claim in damages once the contract
complained of had been awarded.
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