How to challenge a Buyer when procurement is flawed?

This blog covers the remedies directive for the public sector and when/how you can raise a challenge against a contracting authority.

The EU Remedies Directive was created in 2007 and transposed into UK law with the updated Public Contracts Regulations in 2009. The Directive brought in two very clear and important changes for suppliers to be aware of which were:

  • a right to challenge the buyer if a contract is entered into before the compulsory standstill period has ended (standstill being the minimum 10 day period where buyers notify all bidders of the intended outcome before contracts can begin); and
  • an automatic right to challenge an award decision and have the contract cancelled or modified if there has been any breach of the wider procurement rules.

In addition, the 2009 Regulations introduced a number of other changes, including:

  • An explicit duty to debrief unsuccessful bidders at the PQQ stage – not in writing specifically but some form of feedback is required,
  • A clarification of what information is required in the Alcatel letters – these are the letters issued to the unsuccessful bidders to commence the standstill period which must contain the name of the winning tender, the award criteria (including weightings), your scores, and the winning tenderer’s scores, the characteristics and advantages of the successful bid, a detailed scoring breakdown and the date the standstill is expected to end. (Will be a minimum of 10 days); and
  • The explicit inclusion of framework agreements in the regulations to notify buyers and suppliers that they were subject to the full terms of the regulations.

So what has changed with the 2015 Public Contracts Regulations?

In short nothing has changed. The Remedies as they stand have been included into the 2015 Public Contracts Regulations in Part Three, Chapter 5, Regulations 85-87.

So what can you do if a buyer doesn’t follow the rules?

Under the 2015 Public Contracts Regulations you have a right to challenge a buyer that you feel has not followed the rules during the procurement process or that has unfairly awarded the contract to another supplier.

Many suppliers we speak to are reluctant to raise challenges as they worry about the long term impact of doing so and souring the relationship with the buyer for future work. While we would agree that each situation has to be looked at individually for each business, a challenge raised in the correct way can be a positive step as it will show that a) You know how tendering works and are a serious bidder and b) could provide an opportunity for the buyer to improve practice going forward.

When to raise a challenge:

  • If your procurement procedure falls under the scope of Part Two of the regulations you are able to raise a challenge which can also be known as a ‘declaration of ineffectiveness’ in certain circumstances.Read More…

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