You’ve decided to go for a public contract, you’ve spent your business’s time and money on putting together the perfect bid, you’ve carefully considered the price, the staffing commitments, the social value your company will add… and then you get that letter. “Thank you for submitting your tender. We regretfully inform you that on this occasion you have not been successful.”

Unsuccessful bidders often feel aggrieved. It can be frustrating to see bid costs go to nothing, and you might even think that the contracting authority has made the wrong choice. Or maybe it was just a mistake? Surely they should have gone with you!

In this case, the bidder doesn’t have long to decide what to do. Once you’ve got your rejection letter, the 30 day timebar to raise a challenge and the 10 day standstill period before the winning bidder enters the contract have already begun. If you’re considering raising a challenge, you will need to act fast.

Can I raise a challenge?

There are two general bases on which a claim can be raised: breach of the procurement principles, and manifest error.

The procurement principles – non-discrimination, equal treatment, transparency and proportionality – apply to all public procurements. If you have grounds to suspect that one of these have been breached, you are more likely to have a successful outcome. These general standards of fairness work themselves out in various detailed rules about the procurement process but also apply in and of themselves.

Manifest error on the part of the contracting authority is a more difficult challenge to successfully mount. The court permits contracting authorities a wide “margin of appreciation” and so this will only be successful if they have done something which is obviously (perhaps “blindingly”) wrong, such as adding up the scores incorrectly.

Your standstill letter ought to explain the reason why your bid was unsuccessful relative to the winning bidder. You will want to check that the award criteria and scoring methodology have been applied correctly and look for any grounds for challenge as you do - such as any indication that criteria has been applied that was not disclosed to you.

What do I do now?

The clock has already started, so you will want to act quickly. In many cases, the first step is to ask for more information from the Contracting Authority – perhaps they haven’t fully explained why your bid was unsuccessful or the rationale behind some of your scoring. This can mean writing to them, setting out your concerns, asking for specific information and reserving your right to take further action as appropriate. In some cases, a request under the Freedom of Information (Scotland) Act can be a useful way of getting sight of relevant documents - but beware that the FOISA deadlines can be more generous than you would hope when the timebar is approaching.

To raise a court action, you must issue a letter before action and then subsequently raise proceedings by serving a summons on the contracting authority (note this is different from England!). This must be done within the timebar – and within the standstill period if you want to stop the authority from entering into the contract with another bidder. To do this, you’ll need a detailed outline of your grounds of claim, and a clear understanding of your desired outcome. Do you want the buyer to abandon the procurement process and start again, or would you be satisfied with an award of damages?

If you think you’ve wrongly missed out on a public contract, we would be happy to advise on your prospects of a successful challenge, the pre-action strategy and to assist with every step of the process. Please don’t hesitate to be in touch with a member of our procurement team.

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