[F1PART 9E+W+N.I.APPLICATIONS TO THE COURT

Textual Amendments

Grounds for ineffectivenessE+W+N.I.

45K.—(1)  There are three grounds for ineffectiveness.

The first ground

(2) Subject to paragraph (3), the first ground applies where the contract has been awarded without prior publication of a notice in the Official Journal in any case in which these Regulations required the prior publication of such a notice.

(3) The first ground does not apply if all the following apply—

(a)the utility considered the award of the contract without prior publication of such a notice to be permitted by these Regulations;

(b)the utility has had published in the Official Journal a voluntary transparency notice expressing its intention to enter into the contract; and

(c)the contract has not been entered into before the end of a period of at least 10 days beginning with the day after the date on which the voluntary transparency notice was published in the Official Journal.

(4) In paragraph (3), “voluntary transparency notice” means a notice—

(a)which contains the following information—

(i)the name and contact details of the utility;

(ii)a description of the object of the contract;

(iii)a justification of the decision of the utility to award the contract without prior publication of a notice in the Official Journal;

(iv)the name and contact details of the economic operator to be awarded the contract; and

(v)where appropriate, any other information which the utility considers it useful to include; and

(b)which, if Commission Regulation (EC) No 1564/2005 as amended from time to time sets out a form to be used for the purposes of paragraph (3), is in that form.

The second ground

(5) The second ground applies where all the following apply—

(a)the contract has been entered into in breach of any requirement imposed by—

(i)regulation 33A (the standstill period);

(ii)regulation 45G (contract-making suspended by challenge to award); or

(iii)regulation 45H(1)(b) (interim order restoring or modifying a suspension originally imposed by regulation 45G);

(b)there has also been a breach of the duty owed to the economic operator in accordance with regulation 45A or 45B in respect of obligations other than those imposed by regulation 33A (the standstill period) and this Part;

(c)the breach mentioned in sub-paragraph (a) has deprived the economic operator of the possibility of starting proceedings in respect of the breach mentioned in sub-paragraph (b), or pursuing them to a proper conclusion, before the contract was entered into; and

(d)the breach mentioned in sub-paragraph (b) has affected the chances of the economic operator obtaining the contract.

The third ground

(6) Subject to paragraph (7), the third ground applies where all the following apply—

(a)the contract was awarded under a dynamic purchasing system;

(b)the contract was awarded in breach of any requirement imposed by regulation 19(11) to (14) (award of contracts under dynamic purchasing systems); and

(c)the estimated value of the contract [F2is equal to or exceeds ] the relevant threshold for the purposes of regulation 11.

(7) The third ground does not apply if all the following apply—

(a)the utility considered the award of the contract to be in accordance with regulation 19(11) to (14);

(b)the utility has, despite regulation 33(7), voluntarily complied with the requirements set out in regulation 33(1) to (2A); and

(c)the contract has not been entered into before the end of the standstill period.]

Textual Amendments