Usually the first time you are aware that you may wish to challenge is on receipt of the contract award notice (or Standstill Letter) advising that you have been unsuccessful. However, the time limits for challenge start to run from whenever you were aware of the issue so if your concern is, for example, a change of criteria or an unclear instruction in the ITT you should challenge that immediately and not wait to find out if you have been successful or not.
For the purpose of this guidance, however, we have assumed that the Standstill Letter is the first date of knowledge.
Check the Standstill Letter
It must set out:
- The name of the winning bidder
- The respective scores of the winning bidder and your bid
- The characteristics and relative advantages of the winning bid compared to yours and with sufficient detail to enable you to make an informed decision about the merits of a challenge
- When the standstill period will end. This will be midnight usually at the end of the 10th day after the date on which the last bidder receives notice.
If the Standstill Letter is defective then the Contracting Authority takes a risk in proceeding to award the contract which might amount to an unlawful direct award giving rise to a remedy of ineffectiveness.
On receipt of the Standstill Letter:
- Check the scores awarded
- Check the reasons given
- Do the scores and reasons look adequate?
If you have concerns either seek legal advice or consider a written request to the Contracting Authority along the lines set out below.
Initial Letter to Contracting Authority
This should set out, concisely:
- Any concerns you have about scores
- Queries about the reasons given for a mark or the adequacy of the information given
- Ask for the standstill period to be extended
- Ask for documents and we suggest that you ask for:
o The evaluation notes of individual evaluators
o Notes of evaluation meetings particularly moderation meetings
o The report required under Regulation 84
Contracting Authorities are not obliged to extend the Standstill Period if requested but will often do so especially in light of the TCC Guide on Procedures for Public Procurement Cases. NB-extension of the Standstill Period does NOT extend the 30 day period within which to bring a claim.
The TTC Guide On Procedure for Public Procurement Cases
The vast majority of claims about a breach of the Regulations are heard in the Technology & Construction Court (TCC). As a result a Guide has been approved by the TCC (and annexed to the TCC Guide
) for the conduct of procurement claims including how the parties should behave pre-action.
Whilst not mandatory a failure to follow the Guide, particularly where a Contracting Authority has refused to give early disclosure of documents, could lead to costs penalties if litigation arises which might have been avoided.
The Guide puts an emphasis on pre action conduct by both parties which is co-operative, reasonable and proportionate and which focuses on trying to resolve the dispute before it reaches a court. More information about the ADR process can be found here