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Remedies   guidance 2 - ineffectiveness
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Remedies guidance 2 - ineffectiveness


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Procurement Remedies

Procurement Remedies

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  • 1. Procurement law remedies –ineffectiveness For procurements commenced on or after 20 December 2009, a contract awarded without an advert, in breach of the procurement regulations, may be declared ineffective. This note summarises other situations where the threat of ineffectiveness should form part of decision making. Issue Comment Introduction Sometime a judgement call is required as to whether the procurement rules require an OJEU advert and competition. In this situation an authority may in good faith and on balance decide that an advert is not required. If that decision is incorrect, there is the potential for ineffectiveness. Scope of If the scope evolves, it may be outwith the scope of the procurement original advert, and so treated as a direct award. Land deals Pure land deals are outwith the scope of procurement law, but there is a spectrum of application from a pure land deal to what amounts to a works contract with a land element. The "Teckal" in- An authority does not need to compete a contract awarded to house exemption an "in-house" body, for example a company owned and controlled by a local authority. The tests for this exemption being met are by no means black and white. Changes to Like contract variations, the courts may find that significant contractors or sub- changes to consortium members require a new competition. contractors This is a developing area of procurement law. Use of the In some circumstances an authority is permitted to make a negotiated direct award e.g. extreme urgency. As with the other procedure without a examples, there are judgements to be made. notice Part B services Part B services do not require an OJEU advert. In some circumstances the classification of a service can be difficult. Thresholds With contract values on the margins of the thresholds, the safest course was always to follow the OJEU route. The risk of ineffectiveness as a consequence of getting valuation wrong increases the importance of the decision. Contract Variation If a contract is materially changed after award, a new procurement may be required. In a challenge situation, the courts may treat the amended contract as a new and directly awarded contract. This note is by its nature a summary only, and is not legal advice.