Navigating a disappointing procurement decision: guidance on next steps

Challenging a procurement decision can be a critical step for businesses that believe a tender process was unfair or flawed. It’s about protecting fairness, transparency, and your commercial interests. However, deciding whether to challenge is not straightforward. This article explains when and how to challenge a procurement decision, the legal framework, and practical considerations.

When you can challenge

Under the Public Contracts Regulations 2015 (the PCR) and the Procurement Act 2023 (the PA), bidders have the right to challenge a decision if the contracting authority breaches its obligations. Common grounds for challenge include breaches of transparency or equal treatment, errors in scoring or evaluation and misapplication of criteria. If you suspect any of these issues, you may have a valid basis for challenge.

Time limits are critical

Time is of the essence in procurement challenges. The standstill period is ten days from the date the award decision is communicated under the PCR and eight working days under the PA. During this period, you can seek clarification and, if necessary, prepare a challenge. While the standstill period can be extended, there is also a strict 30-day limitation period running from when a bidder knew or ought to have known of the grounds for challenge. Acting quickly is essential – failure to do so will almost certainly sound the death knell for your legal challenge.

Importantly, issues can arise before the award stage. If you are excluded at an earlier point in the process (and therefore do not receive an Assessment Summary) or you spot something concerning mid-process – such as unclear evaluation criteria, inconsistent scoring, or a potential breach – you should consider raising it immediately. Waiting until the winners are announced may be too late, as the 30-day clock could already be ticking from when you first became aware of the issue.

The options

If, upon receiving the award decision, you believe there has been a breach, then you have several options – but you need to act quickly. The clock starts ticking as soon as you are notified, and delays can severely limit your remedies.

You can begin with informal clarification, asking the authority to explain its decision. If that does not resolve the issue, the next step is a formal pre-action letter, setting out your concerns and the legal basis for your challenge. If necessary, you can escalate to issuing proceedings in the High Court.

The most powerful remedy at this stage is the automatic suspension, which prevents the authority from entering into the contract while the dispute is resolved. This is often the key to preserving your position – once the contract is signed, your options narrow significantly, and damages may be your only remedy. Acting promptly is therefore critical to protect your rights.

When to challenge

Not every disappointing result warrants a challenge. You should weigh the commercial and legal factors carefully. Consider the value of the contract compared to the potential legal costs, the strength of your evidence, and the impact on your relationship with the authority. Sometimes, it may be better to seek feedback and improve for next time rather than pursue litigation.

A strategic move

Challenging a procurement decision is a powerful tool, but it should be used strategically. Understanding the legal framework, acting quickly, and weighing the commercial implications are essential. If in doubt, seek early advice to assess the merits of your position and quickly protect your interests.