LEGAL REPORT
may be settled without
the need to go to litigation. A
contracting authority is urged to
respond promptly to any letter before
claim, and to provide the unsuccessful
bidder with all information to which it is
entitled.
The contracting authority should
try to establish as quickly as possible
whether there are good grounds for
the proposed challenge. If more time
is needed to consider the matter, the
authority may extend the standstill
period. If there are in fact issues with
the procurement exercise, corrective
action without recourse to litigation is
encouraged, such as suspending the
contract award and/or setting it aside
altogether. But, if after investigation the
contracting authority believes that the
contract award was lawful, litigation may
be unavoidable, unless the unsuccessful
bidder is prepared to drop its challenge.
If proceedings are issued, and
the award of the proposed contract
automatically suspended, the contracting
authority may apply to the court to end
or modify the suspension. The court will
decide this after considering
whether the unsuccessful bidder
has an arguable case, whether
damages will be an adequate
remedy, and whether retaining the
suspension will inhibit vital public services
for a significant time.
CONFIDENTIALITY
A common issue in procurement
challenges is protecting confidential
information, such as the price of the
winning bid. Unsuccessful bidders want
as much information as possible in
order to work out whether bids have
been correctly marked. Contracting
authorities want to avoid pointless
disclosure and breaches of confidentiality.
Authorities are expected to disclose
the key information needed by the
unsuccessful bidder to understand why it
has lost. Refusing this level of disclosure
may prevent an authority from later
using the same evidence in support
of an application to lift the automatic
suspension imposed when proceedings
are issued.
The courts understand that a balance
must be found between protecting
confidential information and open justice.
Once a challenge becomes litigious, a
successful tenderer may be joined in the
proceedings to protect its interests – not
just from a confidentiality perspective
but also it may seek to claim damages
if the claim issued by the unsuccessful
tenderer fails and it can prove it has
suffered a loss due to the delay caused
by the challenge itself. The court will
manage all proceedings in such a way as
to protect confidentiality, and parties are
encouraged to use confidentiality rings
and undertakings to facilitate information
disclosure. These procedures may give
all parties some assurance, but they also
often add to the length, complexity and
cost of proceedings.
START
PROCEEDINGS
Bringing a procurement challenge
86 www.operationsengineer.org.uk Winter 2021
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In June 2021 the Cabinet Office
published new information and
guidance for public procurement.
This requires contracting authorities
to consider national priority
outcomes (which are also termed
‘social value outcome’) alongside any
additional local priorities when they
are conducting a procurement. These
include:
• Creating new businesses, new jobs
and new skills
• Tackling climate change and
reducing waste
• Improving supplier diversity,
innovation and resilience.
The government intends to bring
forward legislation to ensure
that this becomes part of all
public procurement exercises. It
has also outlined its intention to
consolidate the four different sets of
procurement regulations currently
in operation, as well as to simplify
the seven possible procurement
procedures that may now be used
into three streamlined procedures.
In addition, new civil procedure
regulations are envisioned that
would fast-track legal challenges
and clarify issues of disclosure and
confidentiality.
Updated public procurement
processes that are faster and simpler
will be good news for both public
authorities and potential contract
providers. But for now, the existing
rules apply, and anyone involved
in public procurement should be
aware the processes, time limits and
challenges, and the need for expert
advice and support as expeditiously
as possible.
Table: Thresholds of public procurement regulations
Contract type Contracting authorities
Central government Sub-central
authorities government authorities Utilities
General supplies & services £122,976 £189,330 £378,660
Supplies & services for
defence & security £378,660
Concessions £4,733,252
Works contracts £4,733,252
In the future
LETTER BEFORE
CLAIM
WITH
PROPOSED
REMEDIES
ISSUE CLAIM
FORM
NO RESOLUTION NO RESOLUTION
KNOWLEDGE OF
INFRINGEMENT
30 DAYS
POSSIBLE
RESPONSE FROM
CONTRACTING
AUTHORITY
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