LEGAL REPORT
public procurement challenges
contract may be concluded. This is to
allow unsuccessful bidders to review
the feedback from the tender. If the
authority notified bidders electronically,
the standstill period is generally 10 days,
and if notice was by other means, it is 15
days. As calculating timing is regulated
by several different rules, if you have any
concerns, a lawyer’s assistance with this
may be vital.
WHEN MAY A TENDER BE
CHALLENGED?
There are many reasons why a tender
may be challenged. These may
include: the design of the tender is
partial to certain suppliers; the tender
documents contain a mistake; there was
inappropriate negotiation with potential
suppliers; the evaluation of the bids
wrongly excluded a bidder, or did not
apply award criteria correctly; the process
specified by the regulations was not
followed; or the required information was
not provided to all bidders.
Any person or public entity or group
who made a bid may challenge the results
of a tender. Other key sub-contractors or
bid consortia partners may also be able
to make a challenge. Where the concern
is the modification of a procurement
contract, parties involved in the original
tender may bring a challenge, and possibly
also parties who did not, but who can
show that at the time of the attempted
modification they had sufficient interest in
the procurement process.
Both regulations and case law need to
be considered when deciding to make a
challenge (see p84 for a diagram of the
process). Obtaining professional advice
as early as possible is always important.
Potential remedies available for
an unsuccessful bidder fall into two
categories, depending on whether or
not a contract has been entered with a
successful bidder. Before a contract has
been entered, there could be a court
order to set aside the decision of the
contracting authority, or a court order
that the contracting authority amends
or reissues a document, or damages.
After a contract has been entered, there
could be a declaration by the court of the
ineffectiveness of the contract, a financial
penalty imposed on the contracting
authority, or damages.
Court proceedings must be started
with 30 days from when the bidder first
knew, or ought to have known, that
grounds for starting proceedings had
arisen. This is usually once notification
of an award has been received from
the contracting authority. However, it
may be before this. If this is the case,
a bidder should not wait for the award
notification to bring a challenge because
the time limit will start running as soon
as a bidder is aware of the infringement.
Although a court may extend this time
limit if it considers that there is a good
reason to do so, in most cases incorrectly
calculating this time limit will prevent a
challenge being made. Issuing a challenge
before a contract has been entered into
with a successful bidder automatically
suspends the conclusion of that contract.
HOW IS A CHALLENGE BROUGHT?
Because of the tight time frames, there
is limited scope for negotiation, so it may
be best to try to resolve challenges via
correspondence. Quick decisions may
need to be made about bringing more
formal challenge proceedings. This will
always involve significant expenses, so
the merits of any challenge and the value
involved should be carefully considered
before issuing a claim.
The courts which ultimately hear
public procurement matters have
published guidance for all parties to a
dispute, ahead of any formal proceedings
being issued, with the hope that issues
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