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EU Treaty Principles - Challenging Public Procurement Decisions

» Posted on: 5 July 2011
» Posted By: Chris Scott

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Bidding for work in the public regime is an expensive and time consuming process. With the cuts in public spending and fewer contracts to bid for, public procurement decisions are being challenged and challenged successfully by aggrieved bidders.

Chris Scott Partner at Taylors Solicitors Construction & Engineering team has had success in this arena recently in a case in the High Court in Manchester. A Government Agency invited tenders through OJEU for the provision of Publicly Funded Services which was responded to by a client who proceeded through PQQ and thence to an automated selection process. The tender involved provision of services in 6 areas and the client bid for all 6. The client’s bid as scored was the highest scoring bid lodged for each of the 6 areas, but the client was awarded only2 contracts.

During the standstill period the client sought to question and then challenge the decisions in the 4 areas where the award was made to others. Some scoring was corrected in favour of the client, but the Agency still announced it was to stand by the original decision, only awarding 2 contracts to the client. An application was made to the Court before the end of the standstill period challenging the Agency’s failure to award the four contracts to the client. The automatic suspension of the award process took effect immediately on the papers being lodged and served on the Agency.

In addition to the challenges under the Regulations, it was alleged that the decision breached overriding principles of transparency and non discrimination and certain contractual provisions, which the client pleaded guaranteed the award of the Contracts. They were countered by threats of the Agency to abandon the process and start again.

The client’s position prevailed with an Order made including contracts for the client, additional funds and costs.

Chris commented that this was a wonderful success for the client and a marked contrast from the first time I sought to persuade a local court that EU Treaty provisions had precedence, just to be told “ not in this court they don’t”.

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