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AUGUST 2008
SCOTTISH GOVERNMENT CONSULTATION DOCUMENT ON THE APPROACH TO IMPLEMENTATION OF:
DIRECTIVE 2007/66/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 11 December 2007
amending Council Directives 89/665/EEC and 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts
EXECUTIVE SUMMARY
This consultation document concerns the implementation of the new European Directive on Remedies in public procurement 1. This is the first of two consultations: this one focuses on the approach to implementation; a later consultation will seek feedback on the implementation itself including draft legislation.
The new Directive amends the previous two EU Directives on Remedies 2, which currently apply to the 'classic' public procurement sector and to the utilities sectors respectively. The main changes surround two key topics: the introduction of "ineffectiveness" as a remedy for illegal direct awards, and the operation of a harmonised standstill period between contract award decision and contract award, to allow the decision to be challenged.
This Directive has already been adopted at European level and cannot be substantively changed in the implementation process. However, some aspects are optional and the Scottish Government seeks stakeholder preferences on those options.
Respondents are urged to set out the rationale and evidence supporting their preferred options clearly. The Scottish Government will analyse the responses carefully and any decisions will take account of the evidence provided. Feedback is sought on all the topics highlighted in this document. However, the Scottish Government is particularly keen to receive stakeholder views on the subject of ineffectiveness and the practical issues surrounding it. Ineffectiveness is the most innovative provision and potentially the most challenging aspect of this transposition, so clear and reasoned feedback is essential.
Part 1 of this document sets out the background to the new Directive and proposed plans for its transposition into Scots law.
Part 2 of the document highlights the key issues for stakeholder consideration and feedback.
An initial Regulatory Impact Assessment and the text of the new Directive are attached at Annex A and B respectively.
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