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Friday, February 5, 2010

European Union protest timing rule similar in principle

Guam procurement law bases its timing deadline for bringing protests based on when the protestor knew or should know of the facts giving rise to the protestor's cause of aggrievement.

The European Union has a similar principle, as explained in a recent court case discussed in United Kingdom: ECJ Rules UK Procurement Challenge Timing Illegal. (Note, if this article does not link, you may have to free register to see it at this site, then view it here.)

[The EU rule is that] the period for bringing proceedings seeking to have an infringement of the public procurement rules established or to obtain damages for the infringement of those rules should start to run from the date on which the claimant knew, or ought to have known, of that infringement.

The European Court of Justice overturned UK rules which allowed the UK courts discretion to rule the time runs from the date of breach.

The ECJ noted that at the time that a candidate or tenderer learns that it has been rejected, it is not in a position to establish whether there has been any illegality. It is not until it has been informed of the reasons for its elimination from the procurement procedure that it can come to a view on whether there has been any illegality and whether it is appropriate to bring proceedings.

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