Have you ever considered challenging a tender decision? It’s your right to do so if you believe that you have a cause to question the outcome. In this blog, we’ll be looking at the legalities of making a challenge, and when you should consider doing so.
Any contract which has been tendered under the Public Contract Regulations (2015) must allow tenderers the right to make a challenge to the decision to appoint. These rules were in place pre-Brexit as part of the EU Remedies Directive and have been put into the PCR unchanged post-Brexit – nothing has changed in the appeals process.
You have a right to challenge a tender decision under two circumstances:
- If the contract starts before the standstill period ends (dates for the standstill period will be included in the tender documents).
- If there has been any breach of procurement rules
What a Buyer Should Tell You
When you are made aware of the result of a tender decision, you should receive a communication from the buy (usually via the portal or email) which tells you:
- The name of the winning company
- The award criteria
- Your scores
- The winning tenderers scores
- A detailed breakdown of the scoring
- The date that standstill will end
If you can understand why you lost the bid at this point, then our blog on what you can learn from a losing tender submission will be helpful. But if those results raise more questions, then it’s time to consider challenging a tender decision.
Challenging a Tender Decision
The onus is on you to raise a tender challenge within 30 days of the result. For this reason, we’d advise that you take some time out to have an honest look at your tender results as soon as they come out. If you have questions, the sooner you raise them the better.
You may want to start with a clarification question, logged via the submission portal. If you lay out your concerns clearly and politely, you should get a considered response. Generally, mistakes in the process are human error rather than anything more nefarious and raising your question politely gives the organisation the chance to address that.
However, if you don’t receive a satisfactory or prompt response, you should make your case in writing via an email or letter which includes:
- The reference number/name of the procurement in question
- Your business name and contact details
- A clear and concise explanation of your challenge
- Anything that has been done so far to deal with it (e.g. questions asked via the portal)
- An explanation of what you would like to happen as a result
Possible results include them restarting the procurement or offering you some kind of compensation for the error.
Make sure from this point on that you keep a record of any communication you have with the buyer after this point. If you speak to them on the phone, then make notes and send an email that includes your understanding of the main points made for them to confirm. It may also be worth getting some legal advice at this point to assist you in moving forward with a challenge.
Can Decisions Really be Overturned?
Yes, they can. The PCR Regulations are there to ensure that public procurement is handled in a fair and transparent way and if this hasn’t happened, there are remedies. However, challenging a tender decision is not a decision that should be taken lightly.
If you’re unhappy with a tender decision and you’d like a third party to analyse the documents and the result and give you an honest opinion, then get in touch today. We offer a bid analysis and debrief service to help support you to understand where things have gone wrong and support you to future success.