Mitigating The Risk Of Ineffectiveness

Public bodies putting contracts out to tender should do more to prepare for and mitigate against the potentially devastating risk of an ineffectiveness order following a legal challenge in Court, writes Farah Al-Hassani, a solicitor in Biggart Baillie's Infrastructure, Environment & Transport Department.

The changes implemented by the Remedies Directive have been viewed by many as something of a mixed blessing. The remedies undoubtedly favour bidders by extending and strengthening existing remedies, enabling bidders to pursue contracting authorities via the Courts if they decide the contracting authority has not followed the Procurement Rules correctly.

However, the "ineffectiveness" remedy potentially carries with it heavy consequences for contracting authorities. It is therefore sensible for contracting authorities to plan for what will happen to a contract that is declared ineffective. That means taking steps to mitigate the consequences of that