Challenging A Procurement Decision

This article focuses on procurement challenges to tenders conducted under the Public Contracts Regulations 2015, as amended (the “Regulations”). Different rules apply to tenders conducted outside the remit of the Regulations.

Many tenderers think that they have to wait to find out if they have won a tender before challenging. In thinking this, tenderers may be depriving themselves of the chance to challenge the process and therefore possibly a chance of winning the work. If you wait until the results come out, chances are you are probably out of time unless the challenge stems from the evaluation of the tenders.

The Regulations provide that proceedings must be started within 30 days beginning with the date when the economic operator first knew or ought to have known that grounds for starting the proceedings had arisen. This, therefore, means, for example, if there are processes within the tender documentation that are not permissible by the Regulations, proceedings must be issued within 30 days of the tender documentation being published. In most cases, if not all, this will mean that proceedings have to be issued before the tender is submitted, never mind the results being announced.

Time limits may be shorter, if it relates to a decision made by the contracting authority and the tenderer has been notified of the decision.

Time limits can be extended by the courts in some cases but application is normally required before the relevant time limit runs out and so an extension is rarely sought.

To stop a tender from being awarded, proceedings must be issued before the end of the standstill period. This can therefore mean that proceedings will need to be issued in less than ten days of becoming aware of the issue.

The time limit in respect of a declaration of ineffectiveness, which is a remedy available in procurement challenges, is again 30 days with a longstop date of 6 months after the contract has been entered into.

This, therefore, highlights the importance of a careful review of the tender documentation at a very early stage, with clarification queries raised in respect of all areas of concern. We regularly carry out due diligence for tenderers on both contract and tender documentation and assist in the process of raising clarifications and seeking amendments. This can reduce the need to challenge tenders and put bidders in a better position for making the decision whether to tender or not for the opportunity. Time and money at an early stage can often negate the need for more costly litigation at a later stage. It can also clarify the terms and conditions which allows bidders to submit more competitive returns.

This article has been produced for general information purposes and further advice should be sought from a professional advisor.