First UK Judgement On The Remedy Of Ineffectiveness Exposes Flaws In The System


The first UK judgment on the remedy of ineffectiveness between Alstom and Eurostar has shown up flaws in the process for deciding the fate of public procurement contracts believes Nick Maltby, partner, Bircham Dyson Bell LLP.

"I think the case raises concerns around giving plaintiffs effective remedies where the terms of the contract change significantly once a preferred bidder has been appointed," explains Nick Maltby.

"The Alstom case was a straight forward enough case to decide in terms of 'ineffectiveness' and the facts were quite unusual, but it would have been open to the court to take a narrower view of whether Eurostar had satisfied the requirements to avoid the contract being ineffective, given that there had been so many changes to the original brief that one might argue made it a fundamentally different contract from the one at the outset.

"In this case, I believe there were good grounds for Alstom to argue that it was an entirely new contract and therefore should have been treated as such - with a brand new bidding process."

The High Court rejected claims from Alstom that the procurement process was flawed, and ruled that rival Siemens should keep the £527 million contract on the basis that Alstom had exceeded the 30 day time limit for bringing the claim, which applies where the utility has provided a...

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