A practical guide to public procurement challenges under the Procurement Act 2023 - Flipbook - Page 3
A guide to public procurement challenges in England and Wales
Who can bring a claim?
A contracting authority’s duty under the PA23
is enforceable by way of court proceedings2.
Proceedings may be brought by a supplier that
“has suffered, or is at risk of suffering, loss or damage
in consequence of a breach of the duty.”3
The jurisdiction for hearing public procurement
challenges in England and Wales lies with the High
Court. In practice, proceedings are generally brought
in the Technology and Construction Court (“TCC”),
which is a specialist court within the King’s Bench
Division and is also part of the Business and
Property Court.
Appendix H of the Technology and Construction
Court Guide (The Technology and Construction
Court Guide (judiciary.uk)) contains the TCC
Guidance Note on Procedures for Public
Procurement Cases (the “TCC Guide”), which sets
out helpful guidance on the conduct of procurement
proceedings. The TCC Guide is drafted with
reference to the previous legislation. Therefore,
care should be had in referring to the TCC Guide,
although many of the principles it contains remain
applicable to challenges under the PA23. We
anticipate the TCC Guide will be updated in due
course. Note particularly that the requirement to
serve the Claim Form within seven days (referred
to in paragraph 9 of the TCC Guide) does not apply
under the PA23.
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Reg 100(1).
Reg 100(2).
Reg 101.
Reg 102.
Reg 103.
Reg 104.
What remedies are available?
If proceedings are started during the applicable
standstill period following award of a contract (see
below) and the contracting authority is notified of
that fact, a contracting authority may not enter into
the contract4. This situation is typically described as
the “automatic suspension”.
The court has power to order interim remedies
including orders to lift the automatic suspension or
to suspend the procurement or any part of it5.
The court may award pre-contractual remedies,
including setting aside the contracting authority’s
contract award decision and/or damages6.
The court may also award damages after the contract
has been entered into. If certain conditions are met,
the court may make an order setting aside
the contract7.
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