Procurement challenges

Challenges to procurement 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.

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.

Going Green

It is vital for the legal industry to support the environmental agenda. Our specialist teams are finding more and more ways to support our clients green goals and obligations. Visit our green goals page for more details on how we can achieve green aims both for our clients in the work we do as well as a business and employer.

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