The Government has now published its Procurement Bill which when enacted will provide a new public procurement regime repealing the Regulations that currently govern public procurements (Public Contracts, Utilities, Defence and Public Security and Concessions). The introduction of the Bill to Parliament follows on from a detailed consultation process on reforming the UK’s procurement regime after Brexit.
Of interest to suppliers and public authorities will be the extent to which the Bill’s proposals will affect the ability of suppliers to challenge contract award decisions and the court remedies available to them. While the Bill contemplates that many of the current provisions will remain in place some changes are envisaged. The following is a high-level summary of some of the key points.
Information to suppliers – Currently suppliers receive so-called “standstill” letters which in addition to their marks and certain other information, should contain “the reasons for the decision, including the characteristics and relative advantages of the successful tender.” In broad terms, this information is meant to be sufficiently detailed to enable an unsuccessful bidder to understand why the winning bid was successful and whether there has been any illegality or infringement which might form the basis for a challenge. Under the proposed legislation, before the contracting authority announces the award of the contract, each supplier must be provided with an “assessment summary” setting out the contracting authority’s assessment of the tender and (if different) the most advantageous tender submitted in respect of the contract. It is not presently clear what level of detail is to be included in the assessment summary and therefore whether this represents a departure from the existing requirements, although it does appear that the assessment summary need not contain a comparison between the advantages of the successful tender over the unsuccessful tender.
Standstill period – Following the decision to award a contract, the contract cannot be entered into before the end of the mandatory standstill period, which is currently 10 days from the date notification is sent to bidders (where the award notification is given by electronic means). Under the new proposals while a standstill period is still provided for it is for a period of 8 working days from the publication of the contract award notice, assuming a longer period is not provided for in that notice.
Time limits – The Bill does not envisage significant changes to the current position. A supplier challenging an award decision must bring proceedings within 30 days beginning with the day it first knew or ought to have known of the circumstances giving rise to the claim. There are a limited number of circumstances where the supplier has been deprived of the opportunity to seek an interim remedy to prevent the entering into of the contract (for example because the contract was entered into during the standstill period) where the period to bring a challenge is extended to 6 months. The Bill also provides that the court can order that time is extended if there is a good reason for doing so up to a maximum of 3 months from the date of knowledge, again reflecting the current position.