Part 2

“PART 9

APPLICATIONS TO THE COURT

Enforcement of obligations

45.

(1)

The obligation on an incumbent undertaker to comply with the provisions of these Regulations, other than regulation 30(9), is a duty owed to an economic operator.

(2)

A breach of the duty owed in accordance with paragraph (1) is actionable by any economic operator which in consequence suffers, or risks suffering, loss or damage and those proceedings shall be in the High Court.

(3)

Subject to paragraphs (4) to (6), such proceedings must be started within 30 days beginning with the date on which the economic operator first knew or ought to have known that grounds for starting proceedings had arisen.

(4)

Paragraph (3) does not require proceedings to be started before the end of any of the following periods—

(a)

where the proceedings relate to a decision which is sent to the economic operator by facsimile or electronic means, 10 days beginning with—

(i)

the day after the date on which the decision is sent, if the decision is accompanied by a summary of the reasons for the decision; or

(ii)

if the decision is not so accompanied, the day after the date on which the economic operator is informed of a summary of those reasons;

(b)

where the proceedings relate to a decision which is sent to the economic operator by other means, whichever of the following periods ends first—

(i)

15 days beginning with the day after the date on which the decision is sent, if the decision is accompanied by a summary of the reasons for the decision; or

(ii)

10 days beginning with—

(aa)

the day after the date on which the decision is received, if the decision is accompanied by a summary of the reasons for the decision; or

(bb)

if the decision is not so accompanied, the day after the date on which the economic operator is informed of a summary of those reasons; and

(c)

where sub-paragraphs (a) and (b) do not apply but the decision is published, 10 days beginning with the day on which the decision is published.

(5)

Subject to paragraph (6), the Court may extend the time limit imposed by paragraph (3) where the Court considers that there is good reason for doing so.

(6)

The Court must not exercise its power under paragraph (5) so as to permit proceedings to be started more than 3 months after the date when the economic operator first knew or ought to have known that grounds for starting the proceedings had arisen.

(7)

For the purposes of this regulation, proceedings are to be regarded as started when the claim form is issued.

(8)

Subject to paragraph (9), but otherwise without prejudice to any other powers of the Court in proceedings brought under this regulation, the Court may—

(a)

by interim order—

(i)

suspend the procedure leading to the award of the contract or the procedure leading to the determination of a design contest in relation to the award of a contract of which the breach of duty owed in accordance with paragraph (1) is alleged; or

(ii)

suspend the implementation of any decision or action taken by the incumbent undertaker in the course of following such a procedure; and

(b)

if satisfied that a decision or action taken by an incumbent undertaker was a breach of the duty owed in accordance with paragraph (1)—

(i)

order the setting aside of that decision or action, or order the incumbent undertaker to amend any document;

(ii)

award damages to an economic operator which has suffered loss or damage as a consequence of the breach; or

(iii)

do both of those things.

(9)

In proceedings under this regulation the Court does not have power to order any remedy other than an award of damages in respect of a breach of the duty owed in accordance with paragraph (1) if the contract in relation to which the breach occurred has been entered into.

(10)

Where, in proceedings under this regulation, the Court is satisfied that an economic operator would have had a real chance of being awarded a contract or winning a design contest if that chance had not been adversely affected by a breach of the duty owed to it by the incumbent undertaker in accordance with paragraph (1), the economic operator shall be entitled to damages amounting to its costs in preparing its tender and in participating in the procedure leading to the award of the contract or its costs of participating in the procedure leading to the determination of the design contest.

(11)

Paragraph (10) does not affect a claim by an economic operator that it has suffered other loss or damage or that it is entitled to relief other than damages, and is without prejudice to the matters on which an economic operator may be required to satisfy the Court in respect of any other such claim.”