Public Contracts Regulations 2015 - Regulation 97

Regulation 97 - Remedies where the contract has not been entered into

This Regulation establishes what remedies are available to the court in case the contract is yet to have been entered into. The remedies for situations where contracts have been entered into can be found in Regulation 98.

The court can order remedies under this Regulation in case it finds the contracting authority in breach of the duty owed in accordance with Regulations 89 and 90. There are three remedies available to the court: setting aside the decision, ie the award decision for example; ordering the contracting authority to amend a document; and awarding damages.

I will focus my commentary on the third remedy which I find particularly interesting at this stage. Although the Regulation clearly allows an award decision to be set aside, it still includes the payment of damages as an alternative (and not a subsidiary option). What can this mean? I can see three different scenarios.

1. This may be conceived as allowing the court to set aside the decision and cumulatively awarding damages to the same economic operator, in case the grounds for awarding damages are present.

2. The Regulation can also be conceived as allowing the court to award damages to other economic operators that have been disadvantaged in a procedure but were not going to win in any case. This seems unlikely as neither good faith nor pre-contractual liability are well established under the law of England and Wales as far as I know.

3. Finally, it may be that the drafting of this Regulation does allow for damages to be awarded in alternative to setting aside the decision.