A practical guide to public procurement challenges under the Procurement Act 2023 - Flipbook - Page 4
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Hogan Lovells
Preparing for a challenge
The most usual time for a bidder to contemplate
challenging aspects of a public procurement process
is after receipt of a contract award notice informing
it that it has been unsuccessful. This guide focusses
upon challenges to a contract award decision.
The lawfulness of a procurement process may be
challenged at an earlier stage8, but regard must be
had to the very short time limit under the PA23 for
bringing claims (see further below).
An example timeline of proceedings and including
points in summary for consideration by contracting
authorities and challengers is set out in Appendix 1
of this guide.
Time constraints
A challenger must act quickly following receipt of a
contract award notice, if it has concerns about the
award. Two time constraints need to be considered:
a) The Standstill Period – the PA23 requires the
contracting authority to allow a period of at least
eight working days following the contract award
notice before entering into the contract (counting
as day one the date the notice is published)9. After
the end of the Standstill Period, the contracting
authority is free to enter into the contract unless
it has become aware beforehand that proceedings
have been started challenging the award decision
during the standstill period10. If a challenger fails
to start proceedings within the Standstill Period
and the contracting authority then enters into the
contract, the challenger’s remedies will generally
be restricted to damages (there are only limited
grounds for setting aside a contract).
b) General 30 day limitation period – under the
Regulations, proceedings must be started within
30 days of the date upon which the challenger
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knew or ought to have known that grounds for
starting proceedings had arisen11. (When counting
30 days, the first day of knowledge is generally
considered to be day one rather than day zero.)
Sometimes a contracting authority may agree to
extend the 30 day limitation period. A contracting
authority may also agree to extend the Standstill
Period, or not to enter into the contract before the
expiry of a period beyond the end of the Standstill
Period. It may be beneficial for a contracting
authority to agree extensions to allow time for
further communication regarding the contract
award, which may avert proceedings. If the
contracting authority does not agree to an extension,
it is important for challengers to consider bringing
proceedings before the expiry of the Standstill
Period.
Analysis of the available information
Before entering into a public contract, a contracting
authority must publish a contract award notice12,
with some exceptions13, and an assessment summary
to each supplier that submitted an assessed tender14,
containing information about the contracting
authority’s assessment of the tender and, if
different, the most advantageous tender. A potential
challenger will need to review information provided
carefully and quickly, having regard to the time
constraints. In practice, the amount of information
provided by contracting authorities varies
significantly. Deficiency in the information provided
may give a standalone ground for challenge, separate
from concerns about the substantive assessment.
Contracting authorities owe bidders duties to comply
with relevant provisions of the PA23, including
particularly to treat bidders equally15. Contracting
authorities must not make manifest errors of
assessment. Bid teams often have good instincts
for areas in which tenders may have been treated
Challenges may also be brought in respect of modifications alleged to be unlawful under Reg.
Reg 51.
Reg 101(1).
Reg 106(2). The court may extend time limit where it considers there is good reason for doing so (Reg 106(3)). Special time limits apply where
a declaration of ineffectiveness of an awarded contract is sought. There is a long stop of six months for a claim for a remedy of set aside (Reg
106(1)).
Reg 50(1).
Reg 50(6).
Reg 50(3).
Reg 12(2).
