We have just seen the new guidance on how a procurement decision challenge should be mounted. It will impact upon the way in which we all deal with these difficult situations in the future.
The guidance, published by the Technical and Construction Court, affects most procurement cases. It recognises that claims will be complex and have to be handled very quickly because of the statutory time limitations. It, also, acknowledges that because of the time constraints, claims may have to be launched with items of information missing.
The Court expects:
- Initial exchange of letters between the aggrieved bidder and the Authority.
- The parties to continue to make appropriate and proportionate efforts to resolve the dispute without the need to commence proceedings.
- The claim to be served within 7 days of issue.
- Because the bidders have less information about the scoring than the Authority, the Authority will provide “key decision material” at an early stage. This would include the evaluation documents and the contemporaneous notes made by the evaluators.
- An early Case Management conference where a bidder considers that it has received insufficient information and applies for more.
- Confidential material on both sides to be protected. The Court expects to receive both redacted and full copies of information. It will then decide on what information may be released and under what conditions.
- The winning bidder to be informed (if not party to the challenge) and for them to participate as an “Interested Party”.
- Where an Authority applies for the automatic stay on the contract initiation, the Court expects the timings to be set to allow the challenging party to file evidence showing why the stay must be maintained.
The initial correspondence from the claimant should identify:
- The procurement process being challenged
- The grounds for the claim (both factual and legal)
- Information sought from the authority
- The remedy required
- A request for an extension of the period within which the authority will not enter into the contract
- An appropriate, short time-limit for a response
Then, the authority should:
- Acknowledge receipt of the letter
- Notify the claimant of its solicitor’s details
- Indicate whether the standstill period will be extended and if so, for how long
The authority should then provide any information which the claimant may be entitled to as soon as possible and send a substantive response as soon as practical thereafter.
Throughout all this, the Court expects the parties to act co-operatively and reasonably.
From the viewpoint of the Public-Sector bidder, this Guidance Note reinforces our ability to get the information we need and then to be able to engage with a constructive discussion with the procurement team. If they don’t play ball, then the Court is likely to take a dim view and this will prejudice any case they think they may have.
If you are considering a challenge and you would like an objective view or more information, please do give us a call on 01227 860375.
