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Common procurement rules that Contracting Authorities break, and what Bidders can do about it

5 June 2024

Public sector procurement processes must be transparent

Contracting Authorities must advertise the opportunity, run the procurement process openly, and make decisions in a clear and understandable way from prior engagement to contract award, and the rules that govern it are very specific.

Transparency holds Contracting Authorities accountable, promotes fairness and equity, prevents corruption, and upholds them to legal and regulatory standards.

It is, however, one of the most common areas where Contracting Authorities fall short, and in some cases break the law (more often than you think). If at any stage of a bid, the Contracting Authority has not provided you with adequate information, then they are not acting with transparency, and the process is not a fair playing field.

This article gives you more insight into common circumstances where Contracting Authorities will attempt to disregard the principle of transparency, and what you can do to resolve this issue when bidding.

Clarification questions

Regulation 47 / 54(6) of the Public Contracts Regulations 2015 (PCR 2015) (and in Part 8 of the Procurement Act 2023, from October 2024

Contracting Authorities must provide additional information relating to the specifications and other tender documents to any interest party, provided the bidder makes the request in good time.

What actually happens

As a bidder, you will often find that information is either missing, incorrect, or contradictory within the tender documents, for which you, if you are bidding properly, will have queries about. This is a straightforward regulation, but Contracting Authorities don’t always respond to every question put to them, especially if they are difficult, create complications, or require extensions to the procurement process.

What you can do

It is your right to request clarification, ask for more information, and expect a response, if submitted within the allocated timeframe to raise them. You must chase your unanswered question, even quoting the above regulation if you must. The lack of response usually means that the required action will work in your favour. You may inconvenience the Contracting Authority, but rules are rules, and if not you, someone else would query their actions at a later stage in the procurement process. Do not leave this so late in the process that it will impact your bid submission.

Uploading your submission

Tideland Signal Ltd v Commission ([2002] T-211/02)

The court has expanded upon the laws that they hold Contracting Authorities to and has embedded them into the legal system, including the assessment period of your bid.

In this caw law example, the court determined that the Contracting Authority has ‘a duty to exercise a certain degree of care when considering the content on each tender, where the terms of a tender itself and the surrounding circumstances indicate that the ambiguity probably has a simple explanation and is capable of being easily resolved, it is, in principle contrary to the requirements of good administration for an evaluation committee to reject the tender in such circumstances is liable to vitiated by a manifest error of assessment of the part of the institution in the exercise of that power.’.

This means that if you have had any issues uploading a bid (you have missed out a document or uploaded the wrong version), the Contracting Authority has a responsibility to contact you to clarify this.

What actually happens

Submitting bids is often a rushed process. There are a lot of documents to upload, some of which you have to upload in different places, and we are all familiar with a portal crash on submission day! This is often beyond the bidder’s control, and many find themselves frantically messaging the Contracting Authority for support as they work through this process.

What you can do

If your bid is incomplete because of the above issues, or if a file has become corrupt following submission, the Contracting Authority must take reasonable steps to resolve this.

Following submission, you can raise a clarification question to advise that you have noticed this/these issues upon reviewing your submitted documents.

Alternatively, a Contracting Authority is legally required to contact you to request the correct documents during the assessment stage. They may only give you a few hours to remedy this, and if you are not able to respond in time, it will impact your submission.

With smaller Contracting Authorities, it is better to be proactive; the assessment team may not have the resources or knowledge to adhere to the above case law. For larger Contracting Authorities however, you can wait for the Contracting Authority to raise the clarification question as part of their due diligence process. When doing this, have the correct up to date documents ready to upload and nominate a responsible person/team within your business to regularly check the portal.

Missing the bid deadline

Manova C-336/12 2013

‘The principle of equal treatment must be interpreted as not precluding a contracting authority from asking a candidate, after the deadline for applying to take part in a tendering procedure, to provide documents describing that candidate’s situation – such as a copy of its published balance sheet – which can be objectively shown to pre-date that deadline, so long as it was not expressly laid down in the contract documents that, unless such documents were provided, the application would be rejected. That request must not unduly favour or disadvantage the candidate or candidates to which it is addressed.’

For each bid, there is a bid pack containing an extensive set of documents. There is usually one sentence within that set of documents that will determine the outcome of a late submission. The sentence is often something along the lines of:

‘Any Final Tenders that are submitted late, for whatever reason, may not be accepted.

As per Manova C-336/12 2013, where the ITT process allows enough flexibility for bidders to clarify bids, you can submit further documents.

What actually happens

Contracting Authorities can make last minute changes to the bid requirements, the format you must upload the document, or wait until the latest possible moment to provide updates to clarification questions. This can leave some bidders in a rush to change the documents / meet all requirements within the timeframe. As a result, some bidders submit incomplete or late bids, even if it’s by just a few minutes.

What you can do

The word in the above sentence to facilitate this is ‘may’. Where this sentence is not resolute in the bid back, this case law can act as a lifeline for bidders. If you have issues with the portal that means your bid is late or incomplete, it gives you an opportunity to fix this if you address it quickly. If you can provide proof to show that you completed your bid on time or that you completed your bid in line with the former requirements that the Contracting Authority changed at the last minute, then you can use this case law to resolve this issue and encourage the Contracting Authority to reconsider your submission.

Appealing the decision

Regulations 85-95 of PCR 2015 (and part 9 of the Procurement Act 2023, following October 2024)

  1. – (1) A breach of the duty owed in accordance with regulation 89 or 90 is actionable by any economic operator which, in consequence, suffers, or risks suffering, loss or damage.

(2) Proceedings for that purpose must be started in the High Court, and regulations 92 to 104 apply to such proceedings.

RPS Consulting Engineers Limited v Kildare County Council ([2016] IEHC 113)

The Contracting Authority has a legal obligation to positively respond to a bidder’s request for further information related to the rejection of their tender within 15 days of having notified the bidder.

If you disagree with the outcome of a bid (you were unsuccessful), you can appeal the Contracting Authority’s decision.

Once the Contracting Authority has issued a letter notifying all parties who they have selected as the preferred bidder, a stand still period will begin. Under PCR 2015, this is currently at least 10 days, and under the Procurement Act 2023, which will come into effect in October 2024, this will be at least eight working days.

What actually happens

It is likely that the Contracting Authority will reject your appeal and you must decide if you want to submit another one. At this point, bidders often accept the outcome because they don’t want to harm their commercial position on future opportunities with that Contracting Authority, or they don’t want to run up resource and legal costs fighting it.

What you can do

Within this standstill period, the bidder can submit a second appeal to the Contracting Authority against their decision. Under Regulation 95 of PCR 2015 (Section 57 of the Procurement Act 2023, following October 2024), Contracting Authorities must refrain from entering into the contract once an appeal (or challenge) process has started. Whilst the regulations for the appeal process do reference litigation, you are not required to start legal proceedings to submit your appeals. You can raise and resolve these issues and reach a successful outcome without going down that route.

If the content in your bid met the requirements, or the Contracting Authority is in breach of the procurement process, your appeal can be successful.

A lot of information available about public sector procurement is shrouded in legal jargon and vague references to legislation / case law, which makes it confusing to most bidders.

This is the first in a number of article that will help you to understand the procurement process, what your rights are as a bidder, and how to navigate regulations so that you win more business.