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Procurement challenges

Wednesday September 18th, 2013

Facing up to a procurement challenge: protocols, processes and preparation.

A challenge to a procurement decision made by a contracting authority can either occur during the procurement process itself or (more likely) at the conclusion of it. It can embroil the contracting authority in time-consuming and expensive litigation; it can delay projects or divert funding from projects; it takes up considerable management time; and it can lead to negative publicity and damage to a contracting authority’s reputation.

Jill Fryer

Jill Fryer

Challenges are perhaps most likely from unsuccessful tenderers or businesses which would have wanted to participate in the tender process but were denied the opportunity; however, they can also come from other parties. Although the procurement regulations only give remedies to certain businesses that took part in or should have been allowed to take part in the procurement process, other third parties can also seek to challenge a procurement decision, relying on general judicial review principles or, more likely, their rights under freedom of information legislation.

A contracting authority cannot exclude the possibility of a challenge but it can take steps to ensure that if one of its procurement decisions is challenged, it can be defended quickly and efficiently. Such steps can include training staff to be able to recognise a challenge, which may not be formally identified as such, and ensuring that all individuals within the organisation who may receive the challenge know of the central point within the organisation to whom it should be directed (in order to ensure consistency in dealing with the challenge).

Contracting authorities should have protocols in place to determine how challenges will be dealt with internally; should ensure that all information relating to their procurement processes is properly and accurately stored (and as their documents could be the subject of an FOI request, they should be appropriately worded); and should ensure that staff know not to destroy documents. In communicating with the person making the challenge, the contracting authority should ensure it does not confer unfair advantage on that person by giving him information not available to other tenderers and that it does not give more information than necessary to respond to the challenge, which could lead to the contracting authority inadvertently increasing the likelihood of challenge.

In assessing the substance of the challenge and considering whether to take any action, the contracting authority may wish to consider taking legal advice, particularly if court action is on the cards. Although it may be tempting, ignoring a potential challenge is likely to be counter-productive.

 

Jill is an Associate with Harper Macleod LLP and can be contacted at jill.fryer@harpermacleod.co.uk

Twitter: @HarperMacleod

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Website: www.harpermacleod.co.uk

 

Gov Opps training partner, PASS (Procurement Advice Support Service) runs relevant training courses for public sector procurement. These include Evaluation and Standstill, Drafting a Compliant PQQ, Introduction to Public Procurement, Competitive Dialogue and Writing a Tender Specification. To get more info on the courses, click HERE.

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