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Remedies Issues in relation to the Implementation of Directives 2004/17 and 2004/18

Dr. Peter Trepte discusses challenges & solutions in implementing Directives 2004/17 & 2004/18, focusing on new concepts introduced, jurisprudence development, and application of remedies in public procurement systems.

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Remedies Issues in relation to the Implementation of Directives 2004/17 and 2004/18

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  1. Remedies Issues in relation to the Implementation of Directives 2004/17 and 2004/18 Dr. Peter Trepte Barrister, London of Counsel, Grayston & Company, Brussels Conference onPublic Procurement Review & Remedies SystemsDubrovnik 24-25 May 2007

  2. How the Issues Arise • Remedies Directives adopted in 1989 and 1992 in light of existing Directives • Directives of 2004 introduce new concepts • In addition, development of jurisprudence

  3. New Concepts Introduced in 2004 • Framework Agreements (public sector) • Competitive Dialogue • E-procurement, notably reverse auctions and dynamic purchasing systems

  4. Jurisprudence • Alcatel decision requiring reasonable elapse of time between award and conclusion of contract allowing for application of remedies • Introduction of standstill provisions

  5. Framework Agreements • Remedies Directives apply to contract award procedures falling within the scope of Directives • cf. qualification lists; post-contract information • Where is the contract under a framework?

  6. Framework Agreements (2) • Question of ‘binding contract’ • single-provider framework • multi-provider framework • ‘Treated’ as a Contract • Rules of procedure apply for all phases up to the award of contracts based on framework agreement (Art. 32(2))

  7. Competitive Dialogue • Two-stage procedure • In UK, standstill notice (based on Alcatel) sent ‘as soon as possible after award decision made’ • When is decision made? • end of dialogue phase? • appointment of preferred bidder? • end of negotiations? • Multiple notifications?

  8. Dynamic Purchasing Systems • Comparable to Frameworks • No Initial Agreement or Contract • Contract when offer accepted • cf. e-catalogues

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