The public sector spends over £125 billion a year on a wide range of goods and services bought from third parties, from every day items such as stationary to high technology kits for hospitals and major construction projects.

Any public body wishing to enter into a contract for the purchase of goods or services above a threshold value of £144,000 must carry out a competitive tender process. The tender has to follow procedures and rules set out in the Procurement Regulations 2006 (“the Regulations”).

The purpose of the Regulations is to try and ensure a competitive, efficient, fair and transparent procurement process with communication to potential suppliers at the outset about what goods or services are required and what the process will be. This should give suppliers greater certainty about the costs and benefits to them of submitting a bid, encouraging effective competition and the public body achieving better value for money.

Rarely does the public body get the procurement process exactly right. This can lead to bidders unhappy with either the process which has taken place or the outcome. In some instances the award of a substantial and long term contract might lead to an unsuccessful bidder effectively frozen out of a highly lucrative section of the market place for its goods.

It is important for a bidder to understand how best to ensure that any procurement it is involved with is being carried out fairly and in accordance with the Regulations. It can then bring an appropriate challenge to the process if necessary. This challenge might lead to the problem being remedied during the course of the procurement or the contract award being stopped and the procurement being re-run.

Obligations on the procuring entity

Set out below are some of the key obligations that purchasing bodies must comply with.

		The procurement must be properly advertised in the Official Journal of the European Union to allow all potential bidders from across Europe the same opportunity to tender and allow for maximum competition.
		The tender documents must state the basic criteria on which the contract award will be made (a) the most economically advantageous or (b) lowest price.
		Where an award is being made on the basis of an offer which is the most economically advantageous it must state the weighting which is gives to each of the selection criteria chosen.
		If the procuring body has a pre-agreed matrix for scoring and weighting of pre-qualification information this must be made available openly to all bidders. Where it is not possible to give weightings for the criteria on objective grounds the criteria must be indicated in descending order of importance.
		All compliant bids must be considered properly. There is an implied contract between the procuring body and the bidder that any bid properly made and submitted in time must be considered.
		The contracting body must treat all bidders equally and fairly, with no discrimination on grounds of nationality or otherwise.
		All bidders must be given the same information, provided with the same opportunity to amend bids if necessary and the same feedback at the end of the process.
		The procuring body must score all the bidders’ submissions in a fair, reasonable and equal manner. If the procuring body amends its scoring mechanism during the procurement it must make sure that all bidders’ submissions are treated in the same way.
		As soon as possible after a decision has been made by the procuring body, it must inform all bidders in writing of its decision in relation to the award of the contract (“the Award Notice”). This must be done by the quickest communication method practicable, including email and fax.
		The Award Notice must include in it the name of the successful bidder, the criteria for the award of the contract, and where practicable the score obtained by the successful bidder and the score of the bidder to whom the Award Notice is being sent.
		The date of dispatch of the Award Notice triggers a 10 calendar day “standstill period” during which the purchasing body cannot complete the contract with the successful bidder. This allows any unsuccessful bidders the time to request a further debriefing about the award decision and commence legal proceedings should they feel they have sufficient grounds to prevent the contract from being entered into.
		If by midnight on the second day of the standstill period the purchasing body receives a request from an unsuccessful bidder for the reasons why it was not awarded the contract, the contracting authority is obliged to inform that bidder of the “characteristics and relative advantages of the successful tender”.
		This information must be provided at least 3 working days before the end of the standstill period, and if necessary the purchasing body is obliged to extend the standstill period to allow 3 working days before it signs the contract with the successful bidder. This allows the unsuccessful bidder time to make a legal challenge to prevent the contract from being entered into.

Back to top

Bringing a challenge

Although disciplinary investigations are inherently stressful for employees, where a school is investigating alleged misconduct, it should not be at risk of a stress claim provided it follows a fair procedure. This means investigating the complaint, and disciplining the employee in accordance with the school’s disciplinary procedure and the statutory disciplinary procedure.

It will be reasonable to dismiss in long-term sickness absence cases where an employee is unlikely to return to work even if the school has caused or contributed to the employee’s illness. In sickness absence cases, up-to-date medical evidence and consultation with the employee regarding returning to work is critical. In dismissal situations the statutory dismissal procedure must be followed.

		Why would you start a legal challenge against a purchasing body? If you consider the purchasing body has not met its legal obligations and you have suffered loss, or risk suffering loss. Loss, in effect is not being awarded all or part of the contract. The Regulations give a bidder the right to bring a legal challenge against a purchasing body in such circumstances.
		A legal challenge might be brought to (a) stop the purchasing body from finalising a contract with the successful bidder and / or (b) financial damages.
		A challenge to a procurement process can be brought at any stage in the tender process. It is most common for challenges to be brought either when one bidder is given preferred bidder status or the Award Notice is sent.
		Before a formal legal challenge is considered any concerns a bidder has must be set out in detail in writing to the procuring body. This gives the procuring body the opportunity to rectify its errors, which in some cases might mean abandoning the tender and starting again.
		If the purchasing body does not provide an adequate response then formal legal proceedings can be commenced in the High Court for breach of the Regulations. Any formal legal challenge must be made within 3 months of the breach of the Regulations occurring.
		If concerns are raised following receipt of an Award Notice prompt action needs to be taken. A written notice requesting reasons for not being awarded the contract must be received by the purchasing body by midnight on the second calendar day of the standstill period.
		The purchasing body cannot enter into the contract until at least 3 days after the further debrief has been provided. This gives vital time to consider the information provided, seek internal and if necessary external legal advice on whether there has been a breach of the Regulations, and whether it is appropriate to make an emergency application to try and prevent the contract being awarded.

Few procurement challenges actually reach Court proceedings. However, we are noticing a substantial increase in the number of formal notices of intention to bring proceedings being served and the number of claims issued is growing. It is the case that the overwhelming majority of these cases settle. Most bidders tend to be interested in obtaining injunctive relief preventing a contract being entered into, rather than simply claiming damages. Only very high value claims are pursued.

In light of the legal costs that are inevitably incurred in litigation and the risk of damage to reputation and relationships with procuring entities, only those cases where there is a real need to challenge, and strong evidence of a breach, is formal action usually taken. However, the threat of action itself can often achieve the desired result.

Back to top