Do You Have Grounds for Challenging Public Procurement Decisions?
We are often contacted by bidders who feel that something was not quite right with an authority’s decision-making process in the evaluation of their bid. They aren’t sure what to do about it and some even lack the confidence to take any action at all for fear that “relationships” will be damaged. We have prepared some outline guidance on how to challenge a tender decision. We hope that this will help anyone who finds themselves in such a position, who has the grounds for challenging public procurement decisions, and who needs to balance the potential upsides and downsides of challenging.
We would like this to be a useful checklist for you, should you wish to push back on a procurement decision. We believe that this guidance and timeline, which is based upon information from the Technical and Construction Court, is an excellent way to approach getting procurement decisions re-examined, should a competition have gone wrong.
This approach covers most procurement cases. It recognises that claims will normally be complex and have to be handled very quickly because of the statutory time limitations. It also acknowledges that because of the time constraints, claims may have to be launched with some items of information missing.
In essence, the Court expects to see the following activities, as a minimum:
- An initial exchange of letters between the aggrieved bidder and the authority.
- The parties continuing to make appropriate and proportionate efforts to resolve the dispute without the need to turn to Court action.
- The claim to be served within 7 days of issue.
- Because the bidders have less information about the scoring than the Authority, the Authority to provide “key decision material” at an early stage. This would include the evaluation documents and the contemporaneous notes made by the evaluators.
- If a bidder considers that it has received insufficient information and applies for more – an early Case Management conference
- Confidential material on both sides to be protected. The Court expects to receive both redacted and full copies of information. It will then decide on what information may be released and under what conditions.
- The notional winning bidder to be informed (if not party to the challenge) and for it to participate as an “Interested Party”.
- Where an authority applies for the lifting of the automatic suspension, the timings to be set to allow the challenging party sufficient opportunity to file evidence showing why the suspension should be maintained.
So, to get your challenge initiated correctly, your initial correspondence should identify:
- The procurement process being challenged
- The grounds for the claim (both factual and legal)
- The information sought from the authority
- The remedy required
- A request for an extension of the period within which the authority will not enter into the contract
- An appropriate, short time-limit for a response
Then, the authority should:
- Acknowledge receipt of your letter
- Notify you of its solicitor’s details
- Indicate whether the standstill period will be extended and if so, for how long
The authority should then immediately provide you with all the information you need and then send you a more substantive response as soon as practicable thereafter. Of course, throughout all this, the Court expects both sides to act co-operatively and reasonably.
From the viewpoint of the Public-Sector bidder, this approach reinforces our ability to get the information we need and then to be able to engage in a constructive discussion about how the issues may be resolved with the procurement team. If they don’t play ball, then the Court is likely to take a dim view and this will prejudice any case they think they may have. For us, this is a brilliant checklist of what we have to do and get right for the process for challenging a public contract award.
By Peter Lobl, Public Sector Bidding Expert
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