Procurement disputes

Challenging or defending a public procurement contract award

Submitting a tender to win business from a public body can be a time consuming and detailed process, and the impact of the award not going your way can be huge, especially if you believe there has been a mistake or the process was unjust.

Under the Public Contracts Regulations 2015 contract award challenges are subject to very short timetables that make it difficult to dispute contract awards. So, when a contract challenge arises, responding quickly is paramount for both sides.

To do so, you need an experienced lawyer who knows and understands the regulations, so they can make a swift decision on whether you have a case.

Why might a contract award be challenged?

• Inaccurate scoring
• Biased marking by procuring body
• The procuring body might have been unlawfully influenced
• Lack of transparency – the procuring body might not be able to explain their actions
• The tendering body lost sight of what they were tendering for – they clearly defined what they were tendering for and then awarded the contract to the candidate who offered additional services
• The procuring body forgot to tender and simply awarded the contract when it should have been put out to tender under OJEU rules.

Our recent work in procurement disputes

Successful challenge of a £7m waste management contract award

We acted on behalf of a UK waste management company in a procurement challenge in the High Court in relation to a £7m NHS waste management contract award. The case was a complex one based not only on the NHS’ breach of the Public Contracts Regulations 2006, but also its failure to assess the impact of the Waste Framework Directive and the Hierarchy of Waste Guidelines and their impact of the tenders submitted. The six NHS trusts in question withdrew their defence before trial and consented to judgement on behalf of the firm’s private sector client.

The judgement order included a declaration that the procurement process had been carried out unlawfully; an order setting aside the contract award; and an award of damages for loss of profit, lost contribution to overheads and wasted tender costs. The procuring bodies also paid the challenging firm’s legal costs.

Successfully defending a challenge on behalf of a consortium of housing associations

An unsuccessful tenderer challenged a contract award concerning the provision of ground works services under the Public Contacts Regulations 2006. The procuring body was a consortium of housing associations. The value of the contract award was £1.75m. Following the exchange of pre-action correspondence and mediation, the challenge was withdrawn and both sides paid their own costs. Service provision to the registered providers by the successful tenderer under the contract award continued uninterrupted throughout the process.

Successfully advising a small charity in bringing a contract award challenge

We successfully advised a small registered charity, providing domiciliary care services to a local authority, in a dispute over pricing following a contract award under the Public Procurement Regulations 2015. The matter settled successfully on an out of court basis following mediation.

Defeating an application for third party disclosure concerning tender related documents

We recently defended an application brought by a party challenging a contract award made by NHS England. The application was brought against our client, the successful bidder, on the grounds that contrary to Reg. 69 of the Public Contracts Regulations 2015, NHS England failed to examine a tender submission which the challenger alleged was of an abnormally low value. The application was dismissed by the High Court and our client recovered around 90% of its legal costs.

Advising a Housing Association concerning the establishment of a “Teckal” services company

We advised a Housing Association in relation to the establishment and corporate governance of a “Teckal” services company under Reg. 12 Public Contracts Regulations 2015, in order to bypass the compulsory external tendering provisions of the Public Contracts Regulations 2015.

Why choose Clarke Willmott for procurement law disputes

Our litigation solicitors have substantive experience of dealing with procurement litigation in the High Court and can determine whether you have a case for challenging a contract award. All matters are dealt with on a bespoke basis, with instructions being turned around quickly.

We have acted successfully on behalf of parties bringing and defending procurement challenges under the Public Contracts Regulations 2006 and Public Contracts Regulations 2015.

Contact a specialist procurement disputes solicitor

If you would like to discuss a procurement law related issue, or a potential challenge, please contact Richard Moore or David Stedman to discuss your case.

We also have litigation solicitors based in Birmingham, Bristol, Cardiff, London, Manchester, Southampton and Taunton. If you are faced with a potential dispute, you can also call for a free initial consultation today on 0800 652 8205 or get in touch online.