Northern Irish Court of Appeal dismisses two appeals against setting aside framework agreements
In a ruling on 26th September 2011, the Court of Appeal in Northern Ireland has dismissed two appeals against separate rulings of the High Court that set aside framework agreements entered into by Northern Irish government departments following breaches of The Public Contracts Regulations 2006 (the “Regulations”).
In both cases the Northern Irish High Court had taken the view that the for the purposes of Regulation 47(9) of the Regulations that provides that the remedy for breach of the procurement process is the award of damages after a contract has been awarded, the framework agreement was not a ‘contract’ and therefore it was open to the Court to set it aside.
The Court of Appeal in Northern Ireland, concluded that the term “contract” in Regulation 47(9) was intended to exclude framework agreements. There was no basis for failing to give proper effect to the clear differentiation in the Regulations between “contracts” and “framework agreements”. Therefore, the High Court did not err in concluding that it was open to it to set aside the framework agreement.
Commenting on the cases, Douglas McLachlan, a solicitor specializing in Public Procurement law with Biggart Baillie LLP in Glasgow said:
“These rulings mean that framework agreements awarded as a result of public procurement procedures commenced before 20 December 2009 may be subject to challenge, notwithstanding the fact they may have been concluded for some time. However, the distinction between “contracts” and “framework agreements” has since been removed by the The Public Contracts (Amendment) Regulations 2009 (and its Scottish equivalent), so it does not apply to framework agreements awarded as a result of public procurement procedures commenced on or after 20 December 2009.
However, since UK public procurement law is required by EU Law to be consistent with EU public procurement law, one has to question whether it is the UK Government or the Northern Irish Court of Appeal that has got the law wrong?”
The full case reports can be accessed from these links:
http://www.bailii.org/nie/cases/NICA/2011/59.html
http://www.bailii.org/nie/cases/NICA/2011/60.html
For more information please contact Colin Miller or Douglas McLachlan.
The information contained in this article is given for general information only, reflects the current law on the date of the article, and does not constitute legal advice on any specific matter