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Review procedures: supply, works and service contracts
The purpose of this Directive is to enhance guarantees of transparency and non-discrimination in the award of public procurement contracts in the European Community (EC) in the fields of supply, works and service contracts. It accords to all firms an equivalent level of legal guarantee in terms of remedies in all the Member States.
Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts [See amending acts].
The purpose of this Directive is to ensure the effective application of Directive 2004/18/EC on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts by making it obligatory for the Member States to establish effective and rapid remedies in the event of infringements of these provisions. These procedures are available at least to any person having or having had an interest in obtaining a particular public procurement contract and who has been or is liable to be harmed by an alleged infringement.
Decisions of the contracting authorities which are in breach of the Community law on public procurement contracts must be subject to effective and rapid remedies. In all Member States, such remedies must include, in particular:
- taking, by way of interlocutory procedures, interim measures (such as suspension of the award procedure in question);
- setting aside unlawful decisions including discriminatory technical, economic and financial specifications in the invitation to tender;
- compensating injured parties.
The Member States may provide that where damages are claimed on the grounds that a decision was taken unlawfully, the contested decision must first be set aside by a body having the necessary powers.
To encourage the smooth operation of the review procedure, the Directive sets certain deadlines: Contracts are to be concluded no sooner than 15 days (or ten, if electronic means are used) after they have been awarded. Similarly, national law may provide for a minimum period of 15 days after the contract has been awarded for applying for a review (or ten, if electronic means are used).
If Member States provide for a time limit for applying for a review, it must be a minimum of 30 days after the publication of the contract award notice.
In any event, reviews have to be applied for within six months of the contract being concluded.
Following an independent review, a contract may be considered ineffective. Similarly, contractual obligations may be cancelled retroactively. In addition, Member States may penalise infringements by imposing fines or shortening the duration of the contract.
Where, before a contract is concluded, the Commission considers that a clear and manifest infringement of Community public procurement law has been committed, it may request the Member State concerned to correct it.
The Commission is to examine the implementation of the Directive by no later than 20 December 2012.
|Act||Entry into force||Deadline for transposition in the Member States||Official Journal|
OJ L 395 of 30.12.1989
|Amending act(s)||Entry into force||Deadline for transposition in the Member States||Official Journal|
OJ L 335 of 20.12.2007