Challenging a decision

Although there is no radical change to the remedies regime under the Act, there are some important differences to be aware of. Read more below.

illustration for Challenging a decision

Challenging a decision

Here’s a general guide for steps to follow if you consider you have grounds to challenge an award.  

Remember: time is of the essence in procurement claims. In most cases, you will generally only have thirty days from the date you’re aware there might be grounds for a challenge to bring a claim and sometimes as little as eight working days. 

It isn’t intended as a definitive guide to every step you might take, and we strongly encourage you to seek legal advice as early as possible if you feel you might have grounds for complaint.  

Please contact Claire Crawford if you wish to have a preliminary discussion about your options. 

First Steps ...

Usually, the first time you’re aware that you may wish to challenge is on receipt of an assessment summary advising that you have been unsuccessful.

However, the time limits for challenge start to run from whenever you were aware of the issue so if your concern is, for example, a change of criteria or an unclear instruction in the ITT you should challenge that immediately and not wait to find out if you have been successful or not.  
 
For the purpose of this guidance, however, we’ve assumed that the date of publication of the Contract Award Notice is the first date of knowledge.  

Check the Assessment Summary

It must set out: 

  • The name of the recipient 

  • A contact postal address and email address for the recipient 

  • The unique identifier for the recipient, the award criteria, including the assessment methodology, set out in full, or a summary of the award criteria including: 

  • The title of each criterion 

  • The relative importance of each criterion 

  • How each criterion was to have been assessed by reference to scores and what scores were to have been available for each criterion 

  • If the award criteria, including the assessment methodology, aren’t set out in full in the assessment summary, an indication of where the full version can be accessed 

It must explain how (1) the recipient’s tender and (2) the winning tender were assessed against the award criteria by reference to scores including: 

  • The score determined for each award criterion, and 

  • An explanation for that score by reference to relevant information in the tender 

  • Where an award criterion includes sub-criteria for assessment, an explanation of how the tender was assessed by reference to each sub-criterion 

  • The total score and any sub-total scores 

     

Under the Act, there’s no requirement for the assessment summary to state when the standstill period will end, If this isn’t stated, you’ll need to check the Contract Award Notice to establish this.  

 

The standstill period will end no earlier than a period of eight working days beginning on the date of publication of the contract award notice.  See our Standstill Calculator for help in working out when the standstill period will end. 

 

If the assessment summary is defective then the contracting authority takes a risk in proceeding to award the contract, which might amount to an unlawful direct award giving rise to a remedy of ineffectiveness.  

Initial letter to contracting authority

Content

A letter should set out, concisely: 

  • Any concerns you have about scores 

  • Queries about the reasons given for a mark or the adequacy of the information given 

  • Ask for the standstill period to be extended 

  • Ask for documents and we suggest that you ask for the evaluation notes of individual evaluators,  notes of evaluation meetings particularly moderation meetings, and the records required under section 98 of the Act  

Standstill period 

Contracting authorities aren’t obliged to extend the standstill period if requested, but will often do so especially in light of the TCC Guide on Procedures for Public Procurement Cases.  

NB-extension of the standstill period does NOT extend the 30 day period within which to bring a claim. 

The TTC Guide on procedure for public procurement cases  

The vast majority of claims about a breach of the Regulations are heard in the Technology & Construction Court (TCC). As a result a guide has been approved by the TCC (and annexed to the TCC Guide) for the conduct of procurement claims including how the parties should behave pre-action. 
 
While not mandatory, a failure to follow the guide, particularly where a contracting authority has refused to give early disclosure of documents, could lead to costs penalties if litigation arises which might have been avoided. 
 
The guide puts an emphasis on pre-action conduct by both parties which is co-operative, reasonable and proportionate, and which focuses on trying to resolve the dispute before it reaches a court. 

Issuing Proceedings

The procedures for issuing proceedings and conducting litigation aren’t covered by this note. Legal advice is strongly recommended before you take such a step. The procedure is covered by:  

  • The Civil Procedure Rules 

  • Practice Direction 51N on shorter/flexible trials 

     

It should be noted that the Regulations require proceedings to be issued in the High Court and that the preference is generally to issue in the TCC. 

Remedies and consequences of issuing proceedings

The effect of issuing proceedings during the standstill period is that the authority cannot go ahead and award the contract. It automatically imposes a suspension on the procurement process. 

Note that under the Act, if proceedings aren’t issued before the end of standstill period, the automatic suspension remedy will no longer be available.  

Once the automatic suspension has arisen the authority may only award the contract if the claim is settled or the court orders that the suspension should be lifted following a hearing. 

Lifting the automatic suspension

A contracting authority may apply to the court to lift the automatic suspension. The key points to note when such an application is made are: 

  • It should be made as soon as possible 

  • When considering whether to lift the automatic suspension the court will consider:  

  • The public interest in, among other things: 

  • Upholding the principle that public contracts should be awarded, and contracts should be modified, in accordance with the law 

  • Avoiding delay in the supply of the goods, services or works provided for in the contract or modification (for example, in respect of defence or security interests or the continuing provision of public services) 

  • The interests of suppliers, including whether damages are an adequate remedy for the claimant 

  • Any other matters that the court considers appropriate 

If the automatic suspension is lifted, then the claim may still continue for damages even though damages can often be difficult to calculate in procurement cases. If it’s not lifted, then an expedited (within 6 months) trial is likely to be ordered probably adopting aspects of the flexible trial practice direction.  

Ineffectiveness

The above all supposes that there’s been a procurement process and award of contract that you know about, but sometimes the problem is that you don’t know about the procurement because it hasn’t been advertised and a direct award has been made.

In those circumstances you may have a remedy of asking the court to declare the contract ineffective. Again, if you think this might apply then legal advice should be sought urgently as the grounds for claiming ineffectiveness are not straight-forward. In summary there are three grounds for an ineffectiveness claim: 

  • Where a contract is awarded without prior publication unless certain exceptions apply 

  • The contract has been entered into either during the standstill period or during the period of any automatic suspension AND there has been a breach of the Regulations 

  • Relates to contracts under framework agreements or dynamic purchasing systems where the contract has been awarded in breach of the requirements for these under the Regulations unless certain exceptions apply 

If any of the above apply, then a bidder may apply to the court for a declaration that the contract entered into is ineffective. That means that the contract ceases to be in force and all future obligations under it are discharged. In addition, a court may make an order for compensation which will impose fines and penalties on the contracting authority.  
 
The reality is that although ineffectiveness is often threatened, where an assessment summary is defective there have been only three declarations of ineffectiveness in the courts as at September 2024.

Confidentiality

A particular issue which arises in procurement disputes is the confidentiality of documents, particularly documents belonging to 3rd parties. A classic example is the pricing of the winning bidder. 
 
A number of ways have evolved to deal with the issue of confidentiality including the creation of what are known as confidentiality rings which permit only a limit number of people, sometimes only legal advisers, to view and consider documents. 

Contact our procurement disputes experts