Last December 20th was the last day granted by the Commission to Member states to transpose to their respective national laws Directive/2007/66/EC. The text, issued on December 11th 2007 and published in the OJEU on 20th that same month, aimed at improving the effectiveness of review procedures concerning the award of public contracts, by introducing the so-called “standstill period” while the review procedure can be initiated before the signature of the contract.

By issuing Directive 2007/66/EC to improve the effectiveness of review procedures concerning the award of public contracts, the Commission addressed some reforms required in Directives 89/665/EEC and 92/13/EEC so that economic operators may have more guarantees when reviewing decisions coming from awarding authorities.

This new Directive on procurement remedies aims at reinforcing the the guarantees of transparency and non-discrimination to ensure that the Community as a whole fully benefit from the positive effects of the modernisation and simplification of the rules on public procurement put forward by Directives 2004/18/EC and 2004/17/EC.

One of the key elements introduced by the new remedies Directive is the “standstill period”, whose aim is to provide tenderers, namely those tenderers who have not yet been definitively excluded, a sufficient period during which the conclusion of the contract in question is suspended, irrespective of whether conclusion occurs at the time of signature of the contract or not. These measures are to remedy some of the weaknesses which were noted in some Member States where there was no sufficient period to review such decisions.

Minimum standstill period to review contract award decisions

Directive 2007/66/EC establishes some minimum periods of time to ensure that the concerned tenderers have sufficient time to examine the contract award decision and to assess whether it is appropriate to initiate a review procedure. The periods will depend on the means of communication used to send the contracting award decision:

• A period of at least 10 calendar days with effect from the day following the date on which the contract award decision is sent to the tenderers and candidates concerned if fax or electronic means are used or,
• if other means of communication are used, before the expiry of a period of either at least 15 calendar days with effect from the day following the date on which the contract award decision is sent to the tenderers and candidates concerned or at least 10 calendar days with effect from the day following the date of the receipt of the contract award decision.

When the award decision is notified to them, the tenderers concerned should be given the relevant information which is essential for them to seek effective review. The same applies accordingly to candidates to the extent that the contracting authority or contracting entity has not made available in due time information about the rejection of their application.

Notice for voluntary ex ante transparency (VEAT)

Further to the standstill period, Remedies Directive also introduces the notice for voluntary ex ante transparency (VEAT), a new type of document, which will be published in the OJEU together with all the tender announcement, awards and any other type of document whose publication is mandatory under Community law. According to the Directive, the notice of voluntary ex ante transparency (VEAT), must include the justification of the decision of the contracting authority to award the contract without prior publication of a contract notice in the Official Journal of the European Union.