UK Public Procurement Law Digest: The perils of high-speed trains and the elusiveness of the remedy of ineffectiveness

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The UK High Court has struck out an application for “ineffectiveness” made by an aggrieved bidder under the UK procurement rules, clarifying the way in which the new contract set-aside remedy operates and reinforcing the importance of acting with promptness in seeking remedies under European public procurement law.

The case is Alstom Transport v. (1) Eurostar International Limited and (2) Siemens PLC [2011] EWHC 1828, a decision made by the English High Court in an application made by the cross channel train operator, Eurostar, and the successful bidder, Siemens, to strike out parts of a claim brought by Alstom, an aggrieved bidder who lost out in a tender for a contract to supply the new generation of trains as part of Eurostar’s £700 million investment in its fleet.

This case involves an interim application, made by a private company which is alleged to be a “utility”, to strike out parts of a claim made by an aggrieved bidder. As such, much of the substance of the aggrieved bidder’s complaints remains to be determined at a subsequent trial. Nevertheless, this case clarifies the way in which the “ineffectiveness” remedy operates under the current procurement remedies regime, and it conveys a number of important messages for both bidders and utilities alike.

It is easy to forget that the procurement remedies regime applies equally to utilities, as well as to more traditional public sector bodies. So, whilst this case centres on the interpretation of the public procurement rules that apply to the utilities sector, due the similarity between the legal regimes that underpin the utilities sector and the non-utility public sector, the messages that emerge from this case would be equally relevant to those bidders and contracting authorities that engage in procurement outside the utilities sector.

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