Challenging Procurement Decisions

Challenging procurement decisions has featured more prominently in the news over recent months, and, in our experience, it always has been, and remains, a difficult area to navigate.Prime examples could include Camelot, as the incumbent, challenging the procurement decision to run the Lottery in the UK. The Contracting Authority (the buyer), The Gambling Commission, have been cited as failing to provide enough feedback with regards to the decision-making process of the award – surely not! Bidders will no doubt be familiar with this frustration, so this will be a particularly interesting case for those working in both bidding and procurement to follow... Last year, the Public Procurement Review Service noted their top 5 reported issues as: ‘Payment’ ‘Evaluation’ ‘Use of Frameworks’ ‘Feedback’ ‘Advertisement’ As a quick reminder, what can bidders expect, in order to ensure they are treated in an open, fair, accountable and transparent manner? The most critical element would have to be the notification of the award - a Standstill letter/ Contract Award Notice detailing the:

Result
Scores – winning bidder vs yours
Relative advantages of the winning bidder/ reasons why they scored higher. This will have to be based on the evaluation criteria provided in the tender pack, which is what the bidder will have used to respond to the tender
The deadline to respond to the Standstill letter – 10 days.

The key, from our perspective is to answer this- has the bid been evaluated in the manner as described in the tender instructions? Has the buyer followed their procedure in awarding scores? If not, this needs to be clarified urgently.Over the years, we have had clients take a different view point when it comes to making a formal challenge. Some do not want to rock the boat, not wishing to jeopardise their chances on future tenders by upsetting the buyer. Others, especially for must-win/ retain contracts, will push hard to ensure a fair result is clear and will happily challenge the buyer to do this, including issuing proceedings.Another common challenge, especially in quite ‘closed’ sectors whereby competitors know each other very well - is when bidders understand that the winning bid cannot possibly meet the criteria in the tender. This could be with regards to specification, lead times etc. The purpose of the standstill period is to seek clarity with regards to this. If you are not receiving the information you need, it is then your decision of whether to make a formal legal challenge! In our Bid Writing Guide, we provide further insight into evaluations, the right to feedback and the right to challenge - https://thorntonandlowe.com/bid-writing-ultimate-guide/The Government does also have a Public Procurement Review Service (Mystery Shopper Service), which is there to help bidders and suppliers of the Public Sector.

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Challenging Procurement Decisions

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