How to challenge a public tender decision & the Public Procurement Bill

Overview of key important insight

• We understand how commercially important running a successful tender process can be, and the impact of a failed bid.
• The reasons for challenging a tender decision might be because the outcome was plainly wrong, or the documents contained a mistake. Was the tender badly managed, or the scoring unfair?
• The PCR governs what you can do if you are unhappy with a decision.
• Don’t wait to bring a challenge – the time limits are very tight – including as little as 10 days for one of the key deadlines.
• The Technology & Construction Court and TCC Guide set out how procurement claims should be dealt with and lay out the pre-action protocol requirements.
• The key documents provided by the public body in making its decision (including detailed scoring and a statutory regulation 84 report) could be critical to your claim. Make sure that you ask for them early.
• Issuing proceedings will automatically suspend the procurement process until resolved by the court. But it will also increase your potential costs exposure.  Consider this carefully before deciding whether to issue a claim.

Important developments

The Procurement Bill was announced as part of the Queen’s speech in May 2022 and had its third reading in the House of Commons last month.  The Bill will overhaul existing procurement legislation when it comes into force (probably next year) and will be an important development in the way tender challenges can be brought.

The Bill will consolidate existing procurement legislation into a single regime covering public contracts (awarded by central government departments), utilities contracts (awarded by utilities in the water, energy and transport sectors), concession contracts for the supply of works or services and defence and security contracts. The Bill is intended to open up more government procurement for SMEs and voluntary and community groups.  With this comes a potential extension to the scrutiny of tender processes.

The Bill also introduces a new ‘exclusions framework’ that will make it easier for the government to exclude suppliers who are deemed to have underperformed on other contracts. It will also create a new ‘debarment register’, accessible to all public sector organisations, which will expressly list companies who should be excluded from contracts given their previous serious cases of misconduct.

We will keep you updated on progress with the Bill and what it might mean for tenders and challenges to them.

Our experience

We were recently instructed by a large US company who sought to challenge a multi-million-pound decision involving a tender to a public body in the UK. Like most challenges of this type, getting the strategy right from a commercial perspective was key. You can click here to read more details about this specific case study and how we achieved a successful result here.

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.

For more information, please contact Huw Wallis on +44 (0)20 3691 2088 or email hwallis@greenwoods.co.uk.