Public Procurement Remedies on Concession Contracts transposed into Irish Law

Tuesday, 15 August 2017

On the 17 July 2017, Paschal Donohoe TD, Minister for Public Expenditure and Reform signed three new Irish Procurement Remedies Regulations. Two of these simply introduce minor typographical changes to the previous Regulations, while the third introduces review procedures for concession contracts into Irish law for the first time. 

Concession Contracts Remedies

S.I. No. 326 of 2017, the European Union (Award of Concession Contracts) (Review Procedures) Regulations   (“the Concession Regulations”) introduces a codified remedies regime for concession contracts, with the Concession Contracts Directive 2014/23/EU having been implemented into Irish law earlier this year.

These Concession Regulations effectively mirror the existing Remedies Regulations for both Public Authority Contracts and Utility Undertakings Contracts implemented in 2010, which reflect EU remedies requirements. This represents an extension of the remedies regime to expressly cover concession contracts. 

The Regulations outline:

1. A standstill period after a tenderer or candidate has received notice of the outcome of their tender or application whereby a reviewable concession contract shall not be concluded.
2. Required information provided in the notice to successful and unsuccessful tenderers and candidates.
3. Time limits and rules concerning the application to Court, the conditions that fall under the exception of Court orders, and the powers and rules of Court.
4. The declaration by Court that a contract is ineffective, the effect being that any contractual obligations not already performed are cancelled. Contractual obligations already performed are unaffected.
5. Alternative penalties and non-exclusion of other remedies. 

No substantive changes have been made to either the Public Authorities’ Contract Remedies Regulations¹ or the Utilities Remedies Regulations².

For further information please contact the ByrneWallace Procurement and EU, Competition and Regulated Markets teams.

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[1] S.I. No. 130/2010 European Communities (Public Authorities Contracts) (Review Procedures) Regulations 2010

[1] S.I. No. 131/2010 European Communities (Award of Contracts by Utility Undertakings) (Review Procedure) Regulations 2010