A practical guide to public procurement challenges under the Procurement Act 2023 - Flipbook - Page 6
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Hogan Lovells
Early stages of the proceedings
It may be appropriate to agree a stay of proceedings,
if there is a prospect that further exchange of
information may resolve the dispute. A stay
may be put into effect by means of a consent
order filed with the court. However, if no stay is
agreed, the challenger must prepare and serve
detailed particulars of claim. Under the previous
procurement regulations, a challenger had to serve
the claim form within seven days. This meant that
detailed particulars of claim also had to be served
by then (because the Civil Procedure Rules require
particulars of claim to be served by no later than the
date for service of the claim form). The PA23 does
not impose a time limit for service of the claim form.
The period for service is therefore the period set by
the Civil Procedure Rules, which is four months.
The omission of a time period within the PA23 is
probably an oversight and may be corrected in due
course. In the meantime, the guidance issued by
the Government is that the contracting authority
may call for service of the claim form within 14 days,
following which the challenger will have a further 14
days to serve particulars of claim, i.e. after 28 days.
This period remains significantly more generous
than the seven days applicable under the
earlier regime.
After any agreed stay is lifted, or after issue of the
claim form if no stay is agreed, a number of issues
typically fall to be addressed in the early stages of
proceedings:
The challenger may make a court application
seeking an order for provision of information and/
or disclosure of documents, if the contracting
authority resists requests (which it may do if it
considers the requests to be too wide).
The challenger may make an application to have
the case tried in an expedited timeframe (this will
normally be appropriate if the challenger wishes
the automatic suspension to be maintained
to trial).
The contracting authority may make a court
application to lift the automatic suspension,
to allow it to enter into the contract with the
winning tenderer.
16 Reg 102(2)
The winning or other tenderers may seek to
become involved in the proceedings as an
“interested party”.
It may be necessary to deal with confidentiality
issues.
The sequencing of the above steps can be
contentious and may need to be resolved by
the court, on written application or at a case
management conference attended by the parties.
In practice, a hearing of the application to lift may
not take place until several weeks after proceedings
are started, although it is open to the contracting
authority to pursue an application very quickly.
Application for an order for disclosure of
documents
Early specific disclosure may be justified to enable
the challenger to plead its case properly. However,
requests must be sufficiently narrow and focussed.
If the challenger and the contracting authority
disagree about whether requested information or
documents should be provided, the challenger may
pursue an application for disclosure at an early stage.
The application will normally be heard at an oral
hearing, generally lasting in the region of a couple
of hours. Generally, the court will allow requests
for “core evaluation materials”. If these include
confidential information of the winning or another
bidder, the parties may need to put a confidentiality
ring in place (see below).
Requests for information under the Freedom of
Information Act 2000 may also be considered.
Application to lift the automatic suspension
The automatic suspension must be lifted before the
contracting authority may enter into the contract.
Lifting must be by order of the court, either by
the parties filing a consent order or following a
successful application by the contracting authority.
In a contested application, the court must have
regard to16:
The public interest in, among other things,
upholding the principle that contracts should be
awarded and modified in accordance with the
law, and avoiding delay in the supply of goods,
services or works provided for in the contract.
