The Risks Of Delay In Procurement Challenges

• Published date: 07 July 2020
• Subject Matter: Government, Public Sector, Government Contracts, Procurement & PPP
• Law Firm: Walker Morris
• Author: Gwendoline Davies, Kathryn Vickers and Lynsey Oakdene

Where contractors identify an issue with a procurement process, they may be tempted to wait until the outcome of the process is known before issuing proceedings. This might be because they want to wait to see if their tender is successful despite the issue or because they don't want to risk antagonising the contracting authority whilst it is still considering tender submissions. However, this is a very risky approach as by the time a decision is issued any challenge may already be out of time. Even if the contractor is successful and doesn't need to make a challenge, if its competitors become aware of the issue and make a challenge then it could result in the procurement process having to be repeated with the potential for a different outcome and even on a best case scenario any challenge is likely to result in a delay to the award of the contract.

The risks associated with the 'wait and see' approach can be seen clearly in Riverside Truck Rental Limited v Lancashire County Council [2020] EWHC 1018 (TCC) where procurement and judicial review proceedings were dismissed as having been made out of time.

Riverside complained of the requirement in an Invitation to Tender (ITT) for a tractor cab to be "standing height" and the contracting authority's decision to treat it as a mandatory requirement of a pass/ fail nature, saying that the requirement was ambiguous and that to treat it as a mandatory requirement breached the requirements of objectivity and transparency. The cab proposed in Riverside's tender was 1.6 metres tall which the authority assessed as not being of "standing height". Riverside's tender was therefore rejected, but it subsequently discovered that if it had not been rejected on these grounds its tender would...