020 7405 4600

Accessibility Icon

Procurement challenges

Procurement challenges in decisions have become an established feature in the procurement of public contracts.

Our team regularly acts for central and local government, housing associations and, to a lesser extent, economic operators.

We can step into an ongoing procurement to manage and deal with potential areas of challenge including issues raised by a displeased economic operator during the course of the procurement.

Whatever the circumstances, our experience has shown us that our early intervention can contain and prevent potential areas of challenge escalating, by giving the right strategic and procedural advice.

For example, we can advise on how to handle a mistake in a tender submission or advise on the permitted bounds of a clarification to ensure that the best possible decisions are made at the earliest available time.

Challenges can start with a “low key” initial complaint or a formal pre-action claim letter, or even proceedings which have sometimes been commenced simply to stop a potential claim from becoming time barred.

In any situation, the early stages can determine how far such claims will go and we can play an active part in that crucial initial time – a stage which can be of particular importance where the challenger is the losing incumbent. Such assistance can include bringing our knowledge and experience to bear in advising on the merits/issues and recommending corrective/mitigating action where appropriate and possible.

Our early participation can involve dealing with issues in correspondence (including pre-action disclosure issues), confidentiality rings, ending the contract-making suspension and, after the initial pre-action period, continuing to act in any on-going proceedings.

Even when a contract has been entered into, our team can help, with great experience in assisting clients on measures which can mitigate the risk of challenge, such as in cases where an authority wishes to modify a contract during its term and where one of the grounds of ineffectiveness could apply.

We are also often instructed to advise on procurement issues such as post-contract modifications.

Key Contacts

Work highlights

  • Our notable reported procurement challenge cases include: R (Wylde & Others) v. Waverley Borough Council [2017], EWHC 466 (Admin); Ocean Outdoor v London Borough of Hammersmith & Fulham [2019] EWCA Civ 1642; Boxxe Ltd v SOS for Justice [2023] EWHC 533.

A Round-Up Insight Into An Economic Operator’s Right to Bring A Procurement Challenge. The basic relevant points under The Public Contracts Regulations 2015 (“PCR”) are that; Under PCR Regulation 18, Contracting Authorities owe duties to Economic Operators; In summary PCR Regulation 2 defines Economic Operators as any person etc which offers the execution of works…

Read more

On 5 September 2023 Birmingham City Council – “Birmingham” – issued a Section 114 Notice under the Local Government Act 1988 (the Act). The decision to issue that notice was prompted by an anticipated budgetary deficit of around £87m between income and expenditure for the 2023/24 financial year and a recognition that Birmingham could not…

Read more

Introduction Under section 123 of the Local Government Act 1972 (the “1972 Act”), local authorities enjoy the power to dispose of land in their possession. Judicial review challenges of decisions to dispose of land using this power are nothing new. However, what is noteworthy is the growing frequency and intensity of these challenges. R (Cilldara)…

Read more

To find out how we can help you, please contact us today