Procurement disputes

Challenging or defending a public procurement contract award

Under the Public Contracts Regulations 2015 (as amended), 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 procurement law solicitor who knows and understands the Regulations, so they can make a swift decision on whether you have a case.

Reasons a contract award might 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 the Public Contracts Regulations 2015.

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 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.

• Successfully defending West Midlands Police in two contract award challenges

The challenges were brought by unsuccessful bidders in relation to two separate tenders concerning contracts for the supply of WMP’s IT services and consumables and WMP’s restorative justice programme.

Proceedings were issued by an unsuccessful bidder in the Technology & Construction Court against WMP in 2018 in relation to its failure to be included at the Invitation to Tender stage for the IT Contract. The litigation was pursued by the claimant with little thought as to the merits of the challenge or its cost to the public purse. Ultimately this was to no avail. The claimant served a Notice of Discontinuance unilaterally withdrawing its claim from the court lists without trial on the basis that it would pay WMP’s legal costs.

The second challenge was brought by an unsuccessful bidder for the RJP Contract which alleged bias in WMP’s tender process. The high profile challenge was originally initiated under the 10 day standstill period under the Public Contracts Regulations 2015 but did not proceed to court following extensive inter party correspondence with the challenger’s solicitors.

Why choose Clarke Willmott for procurement law disputes

Our litigation solicitors have significant 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.

Contact a specialist procurement disputes solicitor today

To discuss a potential procurement dispute  please contact one of our specialist procurement lawyers directly or call 0800 652 8025 to discuss your requirements.

Clarke Willmott has offices in Birmingham, Bristol, Cardiff, London, Manchester, Southampton and Taunton.