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Enforcement of obligations
    32.—(1)  The obligation on a utility to comply with the provisions of these Regulations other than regulations 7(2), 21(8) and 27, and with any enforceable Community obligation in respect of a contract (other than one excluded from the application of these Regulations by regulation 6, 7, 8 or 10), is a duty owed to providers.

    (2)  A breach of the duty owed pursuant to paragraph (1) shall not be a criminal offence but any breach of the duty shall be actionable by any provider who, in consequence, suffers, or risks suffering, loss or damage.

    (3)  Proceedings under this regulation shall be brought in England and Wales and in Northern Ireland in the High Court and, in Scotland, before the Court of Session.

    (4)  Proceedings under this regulation may not be brought unless—


(a)  the provider bringing the proceedings has informed the utility of the breach or apprehended breach of the duty owed to him pursuant to paragraph (1) above by that utility and of his intention to bring proceedings under this regulation in respect of it; and


(b)  they are brought promptly and in any event within 3 months from the date when grounds for the bringing of the proceedings first arose unless the Court considers that there is good reason for extending the period within which proceedings may be brought.

    (5)  Subject to paragraph (6) below, but otherwise without prejudice to any other powers of the court, in proceedings brought under this regulation the Court may—


(a)  by interim order suspend the procedure leading to the award of the contract in relation to which the breach of the duty owed pursuant to paragraph (1) above is alleged, or suspend the implementation of any decision or action taken by the utility in the course of following such a procedure; and


(b)  if satisfied that a decision or action taken by a utility was in breach of the duty owed pursuant to paragraph (1) above—


(i)  order the setting aside of that decision or action or order the utility to amend any document, or


(ii)  award damages to a provider who has suffered loss or damage as a consequence of the breach, or


(iii)  do both of those things.

    (6)  In proceedings under this regualation the Court shall not have power to order any remedy other than an award of damages in respect of a breach of the duty owed pursuant to paragraph (1) above if the contract in relation to which the breach occurred has been entered into.

    (7)  Where, in proceedings under this regulation, the Court is satisfied that a provider would have had a real chance of being awarded a contract if that chance had not been adversely affected by a breach of the duty owed to him by the utility pursuant to paragraph (1) above the provider shall be entitled to damages amounting to his costs in preparing his tender and in participating in the procedure leading to the award of the contract.

    (8)  Paragraph (7) above shall not affect a claim by a provider that he has suffered other loss or damage or that he is entitled to relief other than damages and is without prejudice to the matters on which a provider may be required to satisfy the Court in respect of any other such claim.

    (9)  Notwithstanding sections 21 and 42 of the Crown Proceedings Act 1947^[24], in proceedings brought under this regulation against the Crown the Court shall have power to grant an injunction or interdict.

Conciliation
    33.—(1)  A provider who considers that—


(a)  a utility has breached or may breach the duty referred to in regulation 32(1), and


(b)  in consequence he has suffered, or risks suffering, loss or damage,
and who wishes to use the conciliation procedure provided for in article 10 and 11 of Council Directive 92/13/EEC^[25] shall send a request for the application of the procedure to the Minister for onward transmission as soon as possible to the Commission.

    (2)  Neither the request for nor any action taken pursuant to the conciliation procedure referred to in paragraph (1) above shall affect the rights or liabilities of the provider requesting it, of the utility in respect of which the request is made, or of any other person.

[24] 1947 c. 44; the Crown Proceedings Act 1947 was extended to Northern Ireland in relation to Her Majesty's Government in the United Kingdom and in Northern Ireland by and with the additions, exceptions and modifications set out in the Crown Proceedings (Northern Ireland) Order 1981 (S.I. 1981/233), to which there is an amendment not relevant to these Regulations. back

[25] OJ No. L76, 23.3.92, p. 14. back