Interim Measures

Interim measures are temporary orders granted by a review body to preserve the status quo in a procurement dispute while the main legal challenge is resolved. They are the procedural bridge that prevents an unlawful award from becoming irreversible by reason of contract signature before a court has had the opportunity to examine the merits.

What are Interim Measures?

Article 2(1)(a) of the Remedies Directive (2007/66/EC) requires all EU member states to make interim measures available in public procurement challenges. The directive describes them as measures "to correct an alleged infringement or prevent further damage to the interests concerned, including measures to suspend or to cause the suspension of the procedure for the award of a public contract or the implementation of any decision taken by the contracting authority."

Interim measures can take several practical forms:

• Suspension of the procurement procedure, preventing the contracting authority from moving to the next stage.
• Suspension of the contract award decision, preventing contract signature.
• An order requiring the contracting authority to disclose evaluation documents or scoring records.
• Preservation of the tender documentation pending the outcome of the main proceedings.

Where a tenderer files proceedings within the standstill period, the automatic suspension of contract signature takes effect by law without the need for a separate interim measure application. Interim measure applications become most critical when the standstill period has already expired (or there was no standstill period) and the bidder needs a court to step in and prevent signature on a discretionary basis.

In that post-standstill scenario, the court applies a balance-of-convenience test: it weighs the strength of the challenger's case, the harm they would suffer if the contract proceeds, the harm to the contracting authority and the public if the contract is delayed, and whether damages would be an adequate remedy. Courts in most European jurisdictions are cautious about granting discretionary interim relief once the standstill has passed, particularly for essential public services.

In the UK, the equivalent application is made to the Technology and Construction Court (TCC), which applies a similar American Cyanamid balance-of-convenience test.

Why Interim Measures Matter for Bidders

Interim measures represent the last opportunity to keep the remedy meaningful. A bidder who secures an interim measure preventing contract signature retains the possibility of actually winning the contract if the challenge succeeds. A bidder who fails to obtain interim relief and sees the contract signed is relegated to a post-contractual remedy (usually a damages claim) that is uncertain and often inadequate.

The strength of the underlying challenge matters greatly in interim measure applications. A bidder with strong evidence of a scoring error, a conflict of interest, or a procedural breach is better placed to obtain interim relief than one relying on a speculative argument.

Example

An Italian infrastructure bidder misses the standstill deadline by two days because the Alcatel letter was sent to a slightly incorrect email address and was not retrieved in time. They discover the contract has not yet been signed. They apply urgently to the Regional Administrative Court (TAR) for an interim measure suspending signature, arguing the notification was defective. The TAR grants a brief suspension to give itself time to examine whether the notification defect prevents the standstill clock from having started.

Frequently Asked Questions

Are interim measures the same as injunctions?

In common law systems (England, Wales, Ireland), the equivalent of an interim measure is an injunction. In civil law systems (France, Germany, the Netherlands, Italy, and most EU member states), the remedy is typically described as a "provisional measure" or "suspension order" granted by the relevant administrative or procurement review court. The underlying purpose is the same: to freeze the situation pending resolution of the main dispute.

Does seeking interim measures guarantee that the contract cannot be signed?

Within the standstill period, filing proceedings triggers the automatic suspension without a further hearing. Outside the standstill period, the court must actively grant the measure: filing the application alone does not suspend the authority's ability to sign. Speed is therefore critical in post-standstill applications.

Can a contracting authority claim damages if an unjustified interim measure causes delay?

In some European jurisdictions, yes. A tenderer who obtains an interim measure and subsequently loses the main challenge may face a counterclaim for damages from the contracting authority for delay costs. This risk is a factor that bidders and their legal advisers weigh when deciding whether to seek interim relief.