Public procurement, contracts and tender challenges

Don’t wait

Whatever you do, do not waste time.  The PCR reflect the public interest that contracts need to proceed quickly and smoothly after any award and that the process should not get bogged down with lengthy legal challenges.

No-one wants to have to take legal advice, but you need to act as soon as you are aware of a potential issue with the tender.  Bear in mind that the time limit could run before the outcome is known (for example, if you are unhappy with the tender process itself, due to a change of tender criteria).  Most of the time though, time runs from the date of the notification that you have been unsuccessful in your bid.

Either way, you have only 10 days after the receipt of notice of the decision before the contract can legally be awarded, and a total of only 30 days to issue proceedings. Fail to act, and you risk losing all of your rights to bring a challenge.

What to ask for

Most tender challenges are dealt with under the Technology & Construction Court (TCC) and TCC Guide.  This regime sets out the conduct of procurement claims and the pre-action expectations on the parties.

The most significant aspect of this regime is that, in recognition of the very short time limits involved in bringing a claim, there is an expectation that the public body must provide an unsuccessful bidder with wide-ranging disclosure of key documents which explain their decision, with a strong emphasis on pre-action collaboration with a view to avoiding the need to issue proceedings wherever possible.

Our expertise

We advise clients on all aspects of bringing claims against public bodies, and the negotiation of successful outcomes across sector as diverse as construction, medical devices, food and agriculture.  If necessary, we can deal with all aspects of court proceedings, in all major forums, as well as all forms of ADR.

Be clear what your objectives are

The documents you can expect to receive include the detailed scoring, evaluation notes and a statutory Regulation 84 report.  Asking for, and reviewing, these documents early will help you make an informed decision as to whether to incur the time, cost and potential commercial risk of a formal challenge.

Carefully review these in order to decide what your commercial objectives are, and how you might achieve them.  Do you want a declaration that the tender was ineffective?  Or damages to compensate for the lost award?  Or something else?

Remember that if you issue proceedings, the public body cannot go ahead with the tender award, as taking this step results an automatic suspension of the procurement process, but this means that the matter can only be decided by the court, with all the costs and uncertainty that this brings.  And always consider how to effectively raise your complaint.  Doing so in an aggressive and overbearing way could potentially impact on your ability to win tenders in the future.  Perhaps a negotiated solution is better.  If so, discuss with your adviser how best to achieve this.