Keeping a close eye on the detail of procurement claims

A recent case involving a city council shows that there is great pressure on unsuccessful bidders to describe their claims accurately, say John Houlden and Michael Barlow.

When a public authority announces the winner of a procurement process the clock starts ticking. There will be a standstill period (10 days) before the contract can be signed and any claim relating to the procurement must be brought within 30 days.

Waiting to see what the unsuccessful bidders do

Waiting to see whether any disappointed bidders challenge can be a pressured time for the bid team. Inevitably there will be requests for feedback sessions and potentially requests for extension to the standstill period and requests for disclosure of further information.

A well organised bid team will have a strategy for this period, dealing with:

• What will happen if contract signature is delayed. How long a delay is possible without affecting the delivery of the project;
• Whether to give extensions of time before signature;
• How much information to provide to bidders, both tactically and in accordance with the law. (Although not the subject of this article, procurement managers should be aware that recent caselaw has clarified the extent of what must be provided in this period, the most relevant cases during 2013 are Roche and Pearson which are subject to other articles by the authors).

The pressure on the challenger

However, the pressure will also be on the unsuccessful bidder. The bidder will have only limited information (that which the authority has provided) and very limited time. Our experience of advising bidders at this time in the process is that the decision to issue proceedings or not is an extremely difficult one. Although many unsuccessful bidders will feel generally aggrieved (often wrongly) they often have great difficulty identifying precise breaches they believe have occurred.

A wise authority will bear in mind the pressure on the potential challenger and will manage the timetable carefully to ensure that the expiry of the relevant period leaves the authority able to proceed and protected from any challenge. Importantly the authority should keep an eye on the limitation clock while providing sufficient information to the bidder for it to make up its mind. It is only after the time period has passed, where the bidder had enough information to act but did not, that the authority can be sure it will not be challenged when it proceeds.

An important thing to remember during this often fraught period is that the challenger must not only raise its complaints, but also specify, reasonably precisely, all the legal claims it might want to bring. Even if it issues proceedings in respect of one alleged breach, if it has not specified any other possible breaches then time (including the 30 days) will continue to run to prevent it from raising those other matters in the future.

Corelogic v Bristol

By way of illustration, on 19 July 2013 Bristol City Council obtained a successful judgment in this way to defeat two substantive claims by Corelogic which had not been accurately described the original claim form.

Initially, Corelogic’s claim form dealt only with failure to provide sufficient information (as required by the Public Contacts Regulations 32). It lodged that claim within the timelimits.

However, Corelogic was also alleging that the procurement process itself was wrong (rather than just a lack of information being provided after the award) because of alleged manifest error in the evaluation and the use by Bristol of undisclosed criteria. It did not initially include those claims in its claim form, probably in part because it felt it did not have sufficient information to explain the details properly. It later included details in its Particulars of Claim which it served more than 30 days later.

This was a mistake. Those arguments were the main substantive part of Corelogic’s claim and by failing to include them in its Claim Form Corelogic has lost the opportunity to argue them. Later inclusion in other court documents and an application to amend the Claim Form retrospectively was not good enough. The judge noted:

"In the absence of any evidence (actual or inferential) that there was some type of obvious clerical error or formal error in the drafting, [the failure to refer to these claims in the Claim Form] is probably the end of the matter."

This is clearly a very good result for the council which now needs to deal with only one allegation rather than three and does not need to justify the evaluation process or the criteria it used.

Managing a challenge

The Court has made it clear that there will be no leeway or tolerance in getting the terms of the possible claims right. Authorities should consequently keep a careful eye on the exact terms of the claims brought against them and watchfully review the (very short) timetable for claims to be made against them.

When the relevant time has passed the only claims which need to be dealt with are those which have been identified in time. That can substantially reduce the matters in dispute and authorities should actively defend any attempts by the challenger later to extend the scope of its claim. In particular, challengers often seek to agree to later amendments to Claim Forms (which might resurrect a claim which was already time-barred) and authorities should be alive to this and not agree to such amendments without careful consideration.

John Houlden and Michael Barlow are partners in Burges Salmon LLP. They can be contacted on 0117 939 2000 or by email This email address is being protected from spambots. You need JavaScript enabled to view it. and This email address is being protected from spambots. You need JavaScript enabled to view it..