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Unfair Award of Tender
Unfair Award of Tender
Your company has tendered for a public sector contract and has not been successful, but you feel that the playing field may not have been exactly level. So what can you do? This sets out the options.
If your business is involved in tendering for public sector contracts, then you may, on occasion, have received a 'letter of regret' from a public body indicating that the tender was not successful. However, can you challenge that decision? Recent government regulations dealing with public authority contracts require that 'in awarding a public contract, a contracting authority shall a) treat all economic operators equally and without discrimination and b) act in a transparent way'. A recent Supreme Court decision in the case of Advanced Totes Limited v Bord Na gCon and Autotote Worldwide Services emphasised the principle of equal treatment and the obligation of transparency. The Court held that Bord na gCon's procedures lacked transparency. Interestingly, it also held that where a criterion is mentioned in a contract document or a contract notice, the criterion must be formulated in such a way as to allow all reasonably well informed and normally diligent tenderers to interpret it in the same way, that the adjudicating authority must keep to that interpretation throughout the procedure and must apply the criterion in question objectively and uniformly to all tenderers. If you feel that the contracting authority has carried out the tendering process, or has awarded the contract unfairly, you may be in a position (subject to reviewing the matter carefully) to challenge that decision by means of judicial review proceedings. Proceedings of this nature should only be considered if appropriate grounds exist, i.e. a tenderer who loses a tender purely on price or other factors may not be successful in judicial review proceedings, unless prima facie evidence of unfairness or discrimination can be shown. Judicial review involves asking the court to review the tender process and the award of contract, with a view to either annulling the contract awarded, varying the contract and / or awarding damages. In order to successfully launch proceedings seeking judicial review, it is necessary to compile information which will form the bedrock of any claim within a relatively short time. An unsuccessful tenderer will usually only receive limited information in the letter of regret. It is for this reason that careful consideration needs to be given to the collation of information required in order to make any application for judicial review which involves the unsuccessful tenderer swearing an affidavit setting out the history of the disputed contract and the manner in which it has been treated. This may be achieved through carefully-crafted correspondence with the public authority and the formulation of a calculated strategy, which can involve making freedom of information requests. If the action is successful, the court can declare a) that the contract or any provision of the contract was void, b) that the contract may be changed as the court sees fit or c) that the court can make any other order as it thinks fit. The court also has the power to award damages to any person harmed by the awarding of the contract. Because of the strict time limits that apply, it is imperative that one is able to establish as soon as possible whether or not grounds exist for an application. Accordingly, if you feel that your business has been harmed by the failure of a public body to comply with public procurement rules, you should seek the appropriate advice at the earliest possible opportunity.
had asked of it and which would have enabled Veolia to make its application for review within the threemonth time limit.