ESA has responded to an Office of Government Commerce (OGC) consultation on the transposition of the EU Remedies Directive into UK law. ESA welcomed the formal adoption of the standstill procedure which would enable illegal procurement processes to be challenged.

ESA also welcomed the application of a new ‘ineffectiveness’ concept under circumstances where illegal direct awards of public contracts were made but noted strong concerns about any attempts to introduce the retrospective cancellation of a lawful contract. Retrospective cancellation could prove completely impractical under circumstances where the construction of physical assets had already begun or where large numbers of employees had been transferred under TUPE. ESA also asked for further clarification of how the alternative prospective cancellation of a contract would work in practice where assets had been constructed using a long-term PFI contract to underpin their financing. Appropriate compensation should be considered under these circumstances.

ENDS