Search

How can we help?

Icon

Challenging a procurement award: what are the possible outcomes?

Losing a tender is never a welcome experience, especially when significant time and money has been expended on preparing your bid. In some cases, there may be good reasons to challenge the outcome legally. But what are the possible outcomes of challenging the award of a public contract?

The legal remedies available under the Public Contracts Regulations 2015 (the “Regulations”) depend on whether the public body has yet entered into the contract with the winning bidder or not:

If the contract has not yet been entered into, the court can order …

  1. That a document be amended or corrected eg. that criteria in the Invitation to Tender documents which breach procurement law must be amended, or mathematical errors in the evaluation documents must be corrected.
  2. That a decision made by a public body be set aside eg. a decision to award the contract to a particular bidder, or a decision to disqualify a particular bidder.
  3. That the public body should pay the unsuccessful bidder damages. Damages are usually based on the loss of profits the unsuccessful bidder would have made on the contract. In light of recent case law, damages may only be available to bidders if the breach of the Regulations the public body has committed is sufficiently serious.

If the public body has already entered into the contract with the winning bidder, the court can order …

  1. Damages, on the same basis as above.
  2. Where there has been a very serious procedural breach of the Regulations, that a contract is declared ineffective. brought to an end and treated as if it never existed. Declarations of ineffectiveness are very rarely available.

The legal remedies available under the Public Contracts Regulations 2015 (the “Regulations”) depend on whether the public body has yet entered into the contract with the winning bidder or not

There are also some possible outcomes not catered for in the Regulations …

  1. The public body may decide to abandon the tender. In almost all cases the Invitation to Tender documents will reserve the right for the public body to abandon a tender and will not oblige the public body to enter into a contract with the winning bidder.
  2. The public body may be ordered to enter into a contract with you, the unsuccessful bidder who ought to have won, had there not been a breach of the Regulations. This is not a remedy provided for in the Regulations, but the court does have a general equitable power outside of the Regulations to grant injunctions forcing a party to do something. However, in a procurement case this power will only be exercised in exceptional circumstances.

It is important for bidders embarking upon a procurement challenge to consider the available remedies and decide whether winning the contract is vital to them, or whether they would be content with a financial remedy. This will inform the action to be taken and the deadlines to be met.

About this article

Disclaimer
This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full General Notices on our website.

About this article

Read, listen and watch our latest insights

art
  • 01 June 2023
  • Employment

Facts employees should know about their personal data

We previously published an article on facts an employer should know about holding personal data, so it is only fair that we also write about the other side of the coin – facts employees should know as individuals whose personal data is held by their employer.

art
  • 01 June 2023
  • Immigration

What is the Immigration Skills Charge (ISC) and how much do you have to pay?

The Immigration Skills Charge (ISC) is a levy on companies who sponsor migrant workers. This levy was imposed on 6 April 2017. The Government states that the charge has been levied to contribute towards addressing the skills gap in the local economy.

art
  • 26 May 2023
  • Employment

Avoiding discrimination in flexible working requests

The right to request flexible working is currently available to employees with at least 26 weeks’ service and is set to be extended further under new Government reforms.

art
  • 25 May 2023
  • Corporate and M&A

Management Buyout – Top 5 things to consider

A management buyout is a financial transaction in which a member of the management team purchases the company from its registered owner. MBO’s usually occur in private companies in an effort to enhance profitability and simplify strategies.

art
  • 25 May 2023
  • Employment

Carer’s Leave Bill set to become law

On 19 May 2023, the Carer’s Leave Bill had its third reading in the House of Lords, and upon receiving Royal Assent, will become law. There is not yet a date for the implementation of this bill, however it is likely that this will happen relatively quickly upon receiving Royal Assent, so is definitely one to keep an eye on.

art
  • 18 May 2023
  • Immigration

Navigating SOC Codes

When it comes to UK immigration, understanding the intricacies of the system is vital. One significant aspect of the process revolves around Standard Occupational Classification (SOC) codes. SOC codes play a crucial role in determining the eligibility for an individual to apply for a work visa, assessing skill levels, and matching individuals to appropriate job roles.