10th Feb 2020

The Public Contracts Regulations (the Regulations) that govern public sector procurement provides bidders with a mechanism to challenge procurement procedures they feel have not been conducted fairly or transparently in compliance with the Regulations. Should a procurement challenge be threatened or made on a procurement you are conducting there are some difficult strategic decisions likely to be faced. 

One of these decisions is whether to abandon a flawed procurement process and start again to avoid litigation. However, the High Court decision in the case of Amey Highways Ltd v West Sussex County Council has clarified that abandoning a procurement will not automatically extinguish pre-existing causes of action. Breaches of the procurement regulations which result in the claimant suffering financial loss or damage could still give rise to substantial claims for damages even if the procurement is subsequently abandoned and the relevant opportunity put back out to tender.

Eversheds Sutherlands, one of the legal services providers on the CPC Legal framework, provide a useful summary of facts of this particular case and conclude that the most effective way to limit the risks associated with challenges to procurement processes is to ensure all possible steps are taken to run the procurement in accordance with the published process and to carry out appropriate checks to identify and rectify any errors prior to sending standstill letters. Doing so will ensure that you in are the best possible position to resist any complaints and to defend any subsequent claims.

More information on regulations that govern procurement can be found on The Further Education Library of Procurement alongside A Guide to Managing Bidder Challenges. It may also be prudent to seek the expertise of a procurement consultant before embarking on any high value tenders, such as Tenet Education Services’ On Demand Tender Service to help minimise the risk of inadvertently breaching the Regulations.