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”. |
