Commercial Contracts & Agreements
By Conal McGarrity
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Procurement Challenges – Has your Business Been Unfairly Denied a Public Contract?

Winning public contracts can be key to the success of a business. Preparing your tender for a public sector contract usually requires a lot of work and effort as this is an extremely competitive area. The contracting Authority will take a variety of factors into account and the successful tender will ultimately be decided by a points based system. In Northern Ireland, Construction & Procurement Delivery (CPD) has responsibility for the public procurement policy.

This policy is designed to ensure all tendering processes are accountable, competitive, consistent, effective, fair and free of discrimination, legal, and transparent. The contracting Authority is under a duty to comply with Regulations and the rules of public procurement. The system is, in theory, a fair one in that it gives small and medium enterprises the opportunity to bid for large public contracts. In practice, however, this is not always the case.

Disputes can arise when a business believes they have been unlawfully or unfairly denied a contract. Issues often arise in relation to inaccurate scoring of tenders, unlawful influence on the contracting Authority or failure of the contracting Authority to take relevant considerations into account. If the tender evaluation is not conducted in a fair and lawful manner it can have serious consequences for businesses who do not receive the contract.

Of course, not every unsuccessful tender application can be challenged. The law is clear on the fact that proceedings can only be brought if a claimant can demonstrate that they had a significant chance of obtaining the contract and they have suffered a loss by not receiving the contract. At PA Duffy and Company our commercial solicitors are experienced in bringing procurement challenges in these circumstances. You should speak to our commercial solicitors as soon as possible as in most circumstances a claimant will have 30 days from the date that they became aware that they have grounds for challenge to issue legal proceedings against the Contracting authority.

The Court has the power to extend this time limit in certain circumstances, however, it is always beneficial to seek legal advise at an early stage of the process. The role of the Courts is not to change the scoring system or re-administer a contract to someone who is deemed more deserving. Rather, a Judge will be concerned with whether the rules of public procurement have been applied appropriately, whether the facts relied upon by the contracting Authority were correct and/or whether a ‘manifest’ error has been made in the process of tender evaluation.

Our commercial solicitors can advise clients on how best to scrutinise and challenge contract awards under the Public Contracts Regulations 2006, as well as advising on how to take action by way of Judicial Review in some cases. Judicial Review proceedings should be issued as a remedy of last resort in cases where the contracting Authority’s decision is considered to be unlawful, procedurally unfair, irrational or unreasonable. A successful procurement challenge will result in the Court awarding damages for any loss incurred by the tendering business.

This will usually include financial loss that was incurred by the tendering business in the process of preparing their tender. If a tendering business believed they had a significant chance of winning a contract, they may have incurred substantial loss in preparing to complete the contract. Our expert commercial law solicitors are highly experienced in bringing procurement challenges against contracting Authorities and can advise you on the best method to recover any loss you have suffered.

At P.A.Duffy and Company we understand that businesses rely on public sector contracts and if they are denied these unlawfully or unfairly we will act swiftly to protect their position.

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