Page 27 - PWM2023_JUNE

TECHNOLOGY REPORT

works, products, services or conces- contract may not be finalised as unsuccessful bidders may want a significant time”.
sions and the contracts envisaged must to review the feedback from the tender.
be for public supplies, public services or There’s a big ‘but’ here though: Tenders can be challenged for Confidentiality is important
public works… defence and security a number of reasons, before or even after the outcome has been Protecting confidential information
matters, and contracts for utility activi- decided, that include the design of the tender being partial to is important in procurement chal-
ties such as water, energy, transport certain suppliers; tender documents containing a mistake; inap- lenges, just as it is in other commercial
and postal services, have separate regu- propriate negotiation with potential suppliers; valuation of the situations. Even so, while unsuccessful
lations”. Further, there are also sepa- bids wrongly excluding a bidder, or not applying award criteria bidders will want to determine whether
rate regulations when the contract correctly; the process specified by the regulations was not fol- bids have been correctly marked, con-
relates to a concession and operating lowed; or the required information was not provided to all bid- tracting authorities want to avoid
risk is to be transferred to a concession- ders. And Talbott has seen challenges come from multiple pointless disclosure and breaches of
aire. parties: “Individuals, public entities or groups as well as key sub- confidentiality. This means they must
The third circumstance Talbott men- contractors or bid consortia partners and also, where a procure- disclose enough for the unsuccessful
bidder to understand why it has lost.
tions relates to the value of the tender. ment contract was modified, those involved in the original Talbott says: “Refusing this level of dis-
He explains: “Most procurement regu- tender, along with parties who were not, but who can show that closure may prevent an authority from
lations only apply to contracts above at the time of the attempted modification they had sufficient later using that evidence in support of
certain thresholds. However, public interest in the procurement process.” an application to lift the automatic sus-
contract opportunities below the pension imposed when proceedings are
threshold values, but more than Solutions for unsuccessful bidders issued.”
£12,000 (central government) or So, can a challenge be mounted before a contract is con- Talbott adds that it should also be
£30,000 (sub-central government) remembered that a successful tenderer
must still be published on the cluded? Talbott advises it can: “A court may set aside the deci- may be joined with a contracting
Government’s Contracts Finder web- sion of the contracting authority or order that the contacting authority in any court proceedings to
site to allow interested parties the authority amends or reissues a document.” And where a chal- protect its confidentiality, and any
opportunity to respond.” lenge is made after a contract is concluded, he says a court may damages claim it may have because of
declare that contract ineffective, and/or impose a financial pen- the delay caused by an unsuccessful
challenge. While this should give all
Thresholds
Unlocking the tenders the current threshold is £5,336,937, proceedings must start 30 days from when the bidder first knew, some assurance, it can also add to the
alty on the contracting authority.
For works contracts or concessions,
But there are, necessarily, time limits for challenges. Court
length, complexity and cost of proceed-
ings.
regardless of the type of contracting
authority. For supplies and services for or strongly suspected, that the contracting authority had The future
breached the regulations. Talbott has seen this happen when
process £426,955, again regardless of the type notification of an award decision is received. But, if an infringe- set in stone for some time now, but it
defence and security, the threshold is
The procurement process has been
ment becomes apparent sooner, he recommends that “a bidder
of authority. But for general supplies
should be noted it could be changing
should not wait for the award notification to bring a challenge;
and services, the central government
threshold is £138,760, sub-central gov- the clock starts ticking as soon as a bidder is aware of the soon. In June 2021 the Cabinet Office,
which is responsible for public procure-
ernment threshold is £213,477, and for breach”. ment, published new information and
utilities it’s £426,955. All are current As a result, in Talbott’s experience, it is recommended that guidance that requires contracting
from 1 January 2022. unsuccessful bidders send contracting authorities a letter of
Understanding whether a tender is claim before any formal proceedings are issued to grant an authorities to consider national strate-
subject to public procurement regula- opportunity for a challenge to be settled without litigation. Even gic priorities when undertaking pro-
tions “enables authorities to follow the so, he thinks “quick decisions may need to be made about bring- curement, rather than simply awarding
correct processes and allows bidders to ing more formal challenge proceedings which always involve the most economically advantageous
know what to expect”, says Talbott, tender. These priorities include creat-
“and, if they have any concerns about significant expenses.” Clearly, the merits of any challenge and ing new businesses, new jobs and new
decisions, when they may bring a chal- the sums involved must be carefully considered before issuing a skills; tackling climate change and
lenge”. claim. As to what may happen next, Talbott notes that “legiti- reducing waste; and improving sup-
It’s important to understand that ten- mate challenges may be dealt with by corrective action such as plier diversity, innovation and resil-
ders regulated by public procurement suspending or setting aside the contract award”. He adds: “If, ience. Talbott says the government
law must use one of several specified after investigation, the contracting authority believes that the intends to make this law.
processes to evaluate and award a con- contract award was lawful, unless the claimant is prepared to
tract. Talbott says: “The contracting drop its challenge, litigation may be unavoidable.” Summary
authority must notify all bidders indi- Practically speaking, if legal proceedings are issued before a Public tendering is more than a legal
vidually of the criteria for an award, the contract has been entered into with a successful bidder, the con- process; it’s an art. Success takes time
reasons for selecting the successful bid, and considered preparation. However,
the scores of the winning and the clusion of that contract is automatically suspended. But Talbott those that put the effort in stand to
unsuccessful bidder, and when a stand- highlights that a contracting authority may apply to a court to make large gains.
still period will end.” He adds that this end a suspension “if it can show that the claimant does not have Remember, the public sector doesn’t
must be at least 10 days from the notifi- an arguable case, that damages will be an adequate remedy, and necessarily ‘make’, but it does ‘do’ – and
cation, during which time the awarded that retaining the suspension will inhibit vital public services for it does this to the tune of £300bn a year.

www.printweekmena.com June 2023 PrintWeek MENA 27