A practical guide to public procurement challenges under the Procurement Act 2023 - Flipbook - Page 5
A guide to public procurement challenges in England and Wales
unfairly and their insight is usually critical
in analysis of the information provided by a
contracting authority.
Engaging external legal counsel
If the challenger considers there to be any prospect
that it will make a challenge, it will be prudent to
identify and appoint external legal counsel without
delay. It may be necessary to commence proceedings
within a matter of days following contract award
in order to prevent the awarded contract being
entered into.
Contracting authorities will also wish to consider
appointing external counsel to advise on responding
to correspondence and proceedings, if they do not
already have appropriate counsel engaged.
Provision of further information by the
contracting authority
The challenger’s analysis of the information
provided will often give rise to questions,
including to fill in gaps in information provided
to the challenger. The challenger should prepare
as comprehensive a set of questions as possible
and provide this to the contracting authority.
Consideration should also be given to requesting
documents that it would be helpful to see, especially
relating to the evaluation exercise carried out.
The TCC Guide encourages parties to act reasonably
and proportionately in providing one another with
information. Generally, it will be in the interests of
the contracting authority to engage with reasonable
requests, because clear answers to potential
complaints raised may dissuade a challenger
from starting proceedings.
A challenger may conclude that a contracting
authority’s answers to its requests for information
adequately address its concerns. However, if a
contracting authority is or becomes unwilling to
agree additional time to explore issues, a challenger
may need to start legal proceedings to obtain the
benefit of the automatic suspension and/or avoid
exceeding the limitation period.
Starting legal proceedings
and early stages
Starting legal proceedings
Proceedings are started by filing a claim form
with the court and paying the appropriate fee. The
claim form must contain brief details of the claim
made and identify the remedies sought, but full
“particulars of claim” may be served up to 14 days
after service of the claim form.
The Regulations do not require the challenger
to send a letter to the contracting authority,
summarising the claims to be made, before filing the
claim form. In practice, it is often sensible for the
challenger to do so, if time allows. The claim form is
typically drafted in general terms, and a letter before
claim will serve to summarise the claims being
advanced.
Ordinarily, the contracting authority is free to enter
into the contract on expiry of the Standstill Period.
However, if the contracting authority is notified
during the Standstill Period that legal proceedings
challenging the contract award have been started,
the Regulations prohibit the contracting authority
from entering into the contract. This is commonly
referred to as the automatic suspension.
Therefore, to avoid the risk that the contracting
authority will enter into the contract immediately
upon expiry of the Standstill Period, the challenger
must start proceedings and notify the contracting
authority that it has done so before then. The
challenger will need to allow sufficient time for
preparing the claim form, receipt and issue of
the claim form by the court, and notifying the
contracting authority.
The Civil Procedure Rules governing court
proceedings require parties to take steps to preserve
documents potentially relevant to a dispute when
legal proceedings are contemplated. Therefore, it
is important for both the contracting authority and
the challenger to issue internal notices to relevant
personnel advising them not to delete documents.
Failure to do so leading to loss of documentary
evidence may lead to adverse inferences being
drawn at trial.
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