Member Article

Challenging the outcome of a public procurement

Public authorities putting out tenders for services have been warned not to fall foul of costly mistakes during selection processes.

The warning from solicitors Wright Hassall follows a landmark case in the High Court in which the firm acted for an organisation which challenged the outcome of a public procurement, resulting in the public authority abandoning its procurement.

Justin Byrne, consultant at Leamington-based Wright Hassall, said his client’s case against a public authority offered a series of cautions for contracting authorities to document evaluations correctly.

He said: “My client attended a de-brief meeting after learning it had been unsuccessful in its tender. The company had scored full marks on the quality evaluation, as did the winning tenderer, but my client’s quote had been more expensive.

“The company believed that the winner’s product did not comply with the mandatory performance specification in the invitation to tender and decided to challenge the procurement on the grounds that the public authority had made a manifest error.

“Crucially, the authority had made a critical error in failing to keep full and contemporaneous records of the tender process and documentation, which resulted in it being unable to demonstrate that it had ensured that there had been a fair and transparent process.

“The importance of setting out how the tender process, selection and evaluation are to be run cannot be underestimated, along with following this process step by step and keeping record that you done so.”

Byrne said that if companies are unsuccessful in a tender, and on mature reflection, feel that the authority should not have reached the decision it did, it is worth taking the steps to challenge the decision.

“Starting the process of a challenge should result in the public authority giving you the information that you need to assess the strength of case,” he added.

“If you are not satisfied with the written response from the public authority, you have only 30 days from the date that you were notified that your tender was unsuccessful to issue legal proceedings. After you have issued proceedings, you can apply to the Court for specific disclosure of the relevant documents if they have not already been provided.

“Once you have the documents, you will know the strength of your challenge. If it is strong, then it is very likely that the public authority will abandon the tender process and start it again - and you may have better luck in the retender.”

This was posted in Bdaily's Members' News section by Matt Joyce .