EU regulations – more clarity on when you can challenge a procurement decision

A recent Procurement Policy Note from the UK's Cabinet Office describes some changes to public procurement regulations.

A number are pretty technical and not very important - but the most significant is clarification on the time limits suppliers have before they can issue a challenge to the contracting authority. This follows the "Uniplex" case which hinged on the allowable time for challenges.

Anyway, instead of relating this to a particular point in the process (e.g. contract award) it is now based on when the supplier knew about the issue - or should reasonably have known about it.

The limit is 30 days from this point although the courts have the discretion to extend this to 3 months in exceptional circumstances. From the Policy Note;

The features of the new general time limit are:
• a limit of 30 days from the day on which the economic operator first knew or ought to have known that grounds for starting the proceedings had arisen (called “the date of knowledge” in this Note)
• discretion for the Court to extend this where there is a good reason for doing so, but only up to a maximum of 3 months from the date of knowledge.

The new limits will apply to all cases where the "date of knowledge" is after 1st October 2011.

I take this to mean that if, for instance, a supplier sees an issue early on in the process, they need to shout about it pretty quickly - not wait until the end and then complain. On the other hand, if something dodgy only emerges after contract award, perhaps when the suppleir extracts detailed scoring information from the authority, then it's not too late to challenge.

So it seems like a reasonable and pragmatic approach, certainly from the supply side.  However, it does introduce an additional note of uncertainty for public procurers - you can't be sure your procurement was challenge free until there's no chance of any additional information coming out.  An FOI request weeks or months after the event could still lead to a challenge!

Which suggests more strongly than ever that you need to be very open and transparent with your processes and documents to avoid the accusation that the supplier "didn't know", which would legitimise a late challenge.

Read more about it - and the other changes - here in the Procurement Policy Note.

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