What Are the Grounds for a Bidder to Challenge a Public Sector Rfp Award in Court?

Concept

The Systemic Faultline in Public Procurement

The award of a public sector Request for Proposal (RFP) represents the culmination of a structured, high-stakes process. It is a system designed to ensure fairness, transparency, and value for the public purse. Yet, the very rigidity of this system creates the conditions for its own failure.

A challenge to an RFP award is not merely an expression of disappointment by a losing bidder; it is an allegation that the system itself has malfunctioned. The core of such a challenge rests on the assertion that the contracting authority deviated from its own prescribed rules, thereby violating the foundational principles of public procurement.

These principles, which mandate equal treatment, non-discrimination, transparency, and proportionality, are the bedrock of the entire process. A deviation from these principles, no matter how small, can taint the entire procurement, rendering the resulting contract award voidable. The grounds for a challenge, therefore, are not found in the subjective merits of a bidder’s proposal, but in the objective failures of the contracting authority to adhere to the established process.

This distinction is critical. The legal system is not designed to second-guess the professional judgment of the evaluators, but to ensure that this judgment is exercised within the strict confines of the law and the RFP’s own terms.

A challenge to a public sector RFP award is an assertion that the procurement process itself was flawed, not that the winning bid was inherently superior.

Foundational Principles of Fair Competition

At its heart, public procurement is governed by a set of foundational principles that are legally enforceable. These principles are not aspirational goals; they are strict requirements that contracting authorities must follow. The most important of these are:

• Equal Treatment and Non-Discrimination ▴ All bidders must be treated equally and without discrimination. This means that the contracting authority cannot favor one bidder over another, or impose requirements on some bidders that are not imposed on all.
• Transparency ▴ The procurement process must be open and transparent. This means that the rules of the competition must be clear and known to all bidders in advance. It also means that the contracting authority must be able to justify its decisions.
• Proportionality ▴ The requirements of the RFP must be proportionate to the subject matter of the contract. This means that the contracting authority cannot impose requirements that are unnecessary or unduly burdensome.

A violation of any of these principles can form the basis for a legal challenge. For example, if a contracting authority provides information to one bidder that it does not provide to others, this would be a breach of the principle of equal treatment. Similarly, if a contracting authority uses evaluation criteria that were not disclosed in the RFP, this would be a breach of the principle of transparency.

Strategy

Identifying a Viable Challenge

A bidder who believes they have been unfairly treated in a public procurement process must act quickly. The time limits for bringing a challenge are very short, typically 30 days from the date the bidder knew or should have known of the grounds for the challenge. The first step in any potential challenge is to obtain the debriefing information from the contracting authority.

This information should include the scores of the unsuccessful bidder and the winning bidder, as well as the reasons for the decision. This information is critical for assessing whether there are grounds for a challenge.

Once the debriefing information has been received, it should be carefully reviewed for any evidence of a breach of the procurement rules. Some common grounds for a challenge include:

• Manifest error of assessment ▴ This is where the contracting authority has made a clear and obvious error in its evaluation of the bids. For example, the contracting authority may have misunderstood a bidder’s proposal, or it may have made a mathematical error in the scoring.
• Failure to follow the stated evaluation criteria ▴ The contracting authority must evaluate the bids in accordance with the criteria and weightings set out in the RFP. If the contracting authority uses different criteria, or if it applies the criteria inconsistently, this can be grounds for a challenge.
• Breach of the principles of equal treatment, transparency, or proportionality ▴ As discussed above, these are foundational principles of public procurement, and a breach of any of them can be grounds for a challenge.
• Conflict of interest ▴ If a member of the evaluation panel has a conflict of interest, this can taint the entire procurement process.

The Standstill Period a Critical Window

The “standstill period” is a crucial feature of public procurement law. This is a period of at least 10 days between the notification of the award decision to all bidders and the signing of the contract. The purpose of the standstill period is to give unsuccessful bidders an opportunity to challenge the decision before the contract is concluded.

If a challenge is brought during the standstill period, the contracting authority is automatically prevented from signing the contract until the challenge has been resolved. This is a powerful remedy for bidders, as it can prevent the contract from being awarded to the wrong bidder.

The standstill period provides a crucial, albeit brief, window for an aggrieved bidder to halt the award of a contract and initiate a formal challenge.

The following table outlines the key stages and considerations in a potential RFP challenge:

Execution

The Legal Mechanics of a Challenge

A legal challenge to a public procurement decision is a complex process that requires specialist legal advice. The first step is to send a pre-action protocol letter to the contracting authority, setting out the grounds for the challenge and the remedy sought. The contracting authority will then have an opportunity to respond. If the matter is not resolved at this stage, the bidder will need to issue a claim in the High Court.

The court has a range of remedies available to it in a procurement challenge. These include:

• Setting aside the award decision ▴ This is the most common remedy. If the court finds that the procurement process was flawed, it can set aside the decision to award the contract to the winning bidder. The contracting authority will then have to re-evaluate the bids or re-run the procurement process.
• Awarding damages ▴ The court can award damages to a bidder who has suffered a loss as a result of a breach of the procurement rules. This can include the costs of preparing the bid and the loss of profit that the bidder would have made if it had won the contract.
• A declaration of ineffectiveness ▴ This is a more drastic remedy that is only available in certain circumstances, such as where the contracting authority has awarded a contract without any competition. A declaration of ineffectiveness will render the contract void from the date of the court’s order.

Building a Robust Case

To succeed in a procurement challenge, a bidder must be able to prove that the contracting authority has breached the procurement rules and that this breach has caused the bidder to suffer a loss. This requires a careful and detailed analysis of the evidence. The following table provides a non-exhaustive list of potential grounds for a challenge and the types of evidence that may be required to support them:

A successful challenge requires meticulous evidence gathering and a clear demonstration of a direct link between the procedural flaw and the resulting harm to the bidder.

A Case Study in a Flawed Evaluation

Consider a hypothetical case where a public body issues an RFP for the provision of IT services. The RFP states that the contract will be awarded to the most economically advantageous tender, with 60% of the marks being awarded for price and 40% for quality. Bidder A submits the lowest-priced bid, but is unsuccessful. The debriefing letter states that Bidder A’s bid was rejected because it did not meet the quality threshold.

However, the scoring sheets show that Bidder A’s bid was awarded a quality score of 35 out of 40, which is well above the quality threshold. The winning bidder, Bidder B, submitted a much higher-priced bid, but was awarded a quality score of 38 out of 40.

In this case, Bidder A would have strong grounds for a challenge. The contracting authority has made a manifest error of assessment by rejecting Bidder A’s bid on the grounds that it did not meet the quality threshold, when the scoring sheets clearly show that it did. Furthermore, the contracting authority has failed to follow its own evaluation criteria by awarding the contract to a bidder who did not submit the most economically advantageous tender. Bidder A would be able to seek an order from the court setting aside the award decision and requiring the contracting authority to re-evaluate the bids in accordance with the stated criteria.

Reflection

Beyond the Protest a Systemic View

The decision to challenge a public sector RFP award is a significant one, with implications that extend beyond the immediate contract. It is a process that tests the integrity of the public procurement system and holds contracting authorities to account for their decisions. While the legal framework provides a mechanism for redress, it is the strategic application of this framework that can lead to a successful outcome.

A deep understanding of the procedural nuances, the evidentiary requirements, and the available remedies is essential for any bidder contemplating a challenge. Ultimately, a successful challenge not only corrects a specific injustice but also reinforces the principles of fairness and transparency that are the cornerstones of a well-functioning public procurement system.