We have seen some recent case law which may give organisations more leverage to get the information surrounding the activities of the evaluators in a Public Sector procurement decision. Although not directly concerned with procurement, a Court of Appeal case involving Denbighshire County Council decided:
- A public authority under a duty to give reasons for a decision must provide adequate reasons within a reasonable time and in any event, before the issuance of judicial review proceedings.
- Reasons given later in the context of the litigation will be viewed with skepticism and will not cure the original deficiency.
- The court found that to discharge such a duty, the reasoning must be “such as to enable interested parties to decide whether to appeal against the determination in question, taking into account any factors which might subsequently be brought to their attention”.
It also decided that even in judicial review proceedings, cross-examination will not be ruled out if there are questions raised by the evidence submitted.
In a procurement competition, there will be a number of situations where contracting authorities have a duty to give reasons for a decision within a reasonable time. Where this is the case, e.g. the Standstill period, their reasons should be given at an early stage to allow competitors to consider whether they have grounds for a claim. The court case makes the point that providing reasons in subsequent proceedings will not be sufficient.
We think that this case will allow more ability to get the information we need when considering challenging a questionable procurement decision. If the reasons given by the authority are found to be inadequate later, they will have difficulty in bringing additional information to prove their case.
Author: Andy Haigh PPM APMP Director and Public Sector Bid Consultant, Sixfold International Ltd
This is a complex area so if you are considering challenging a procurement decision and you are within the timescales, please contact us immediately for a no-obligation discussion on 020 8158 3952 / firstname.lastname@example.org
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