Further guidance may provide more detail here in due course. There is no stated process for challenging an authority issuing a contract performance notice – beyond that which is generally available to suppliers under the Act for breach of the Act. If a contract performance notice is inaccurate, then potentially a supplier could bring a claim under the Act against the publishing authority for breach of the duty to publish a compliant contract performance notice and more generally for breach of section 12 duties around transparency, proportionality, and equal treatment. The usual 30-day limitation period for a procurement claim would apply and would be likely to start to run from the publication date of the Contract Performance Notice. Such a claim might well be brought alongside a general contract law claim disputing termination for the breach in question.
A supplier who was excluded from a procurement based on a defective contract performance notice would presumably notify the contracting authority in the current procurement of the defect. This might well give rise to a duty on that contracting authority to uphold its section 12 duties to act transparently, proportionately, and afford equal treatment, by looking into the detail of the contract performance notice and the supplier’s complaint around it. Of course, a supplier must always be given an opportunity to make representations and demonstrate self-cleaning prior to any exclusion. However, as set out above, where a supplier did not make a timely challenge to the publication of the Contract Performance Notice within 30 days of its publication, it will almost certainly have lost the right to do so now, due to the limitation period. It is possible that this is an area where guidance may be issued from the Procurement Oversight Unit.