Suppliers lose fear of challenging public awards

23 September 2010

23 September 2010 | Paul Snell

Challenges to public sector contract awards have leapt as suppliers no longer worry about losing future business, according to a senior procurement lawyer.

Speaking at the CIPS Conference 2010 in London today, Ruth Connorton, head of procurement law at legal firm Eversheds, said the landscape of public procurement had changed radically in the past year.

“It has gone crazy,” she said. Connorton pointed to increased desperation for business, bigger contracts, the Freedom of Information Act, the government transparency initiative, and “fabulous new remedies rules. People aren't embarrassed [to challenge] anymore.”

She added that vendors’ former fears that a challenge would cost business in future had evaporated. “If you challenge, you are virtually guaranteed [to be invited to tender] because the authority is so frightened to make another mistake,” she said.

David Hansom, associate at Eversheds, said that whereas the firm saw about one challenge a year to contract awards five years ago, it now receives about one a week.

Connorton said public purchasers were in an “incredibly difficult” position. On one hand, she said, they were told to promote flexibility, the government's “big society” and pro-British sourcing decisions, yet on the other, they were told public procurement rules do not allow any of these things.

Hansom said many challenges are based on poor explanation of the evaluation criteria, and the courts would find against authorities that have not disclosed sufficient information.

“You need to explain how bidders can do well – not give them the answers, but allow them to make a reasonable decision to bid for the contract,” he said.

He urged purchasers to stick to the evaluation criteria once they were set, or it would be difficult to defend the process against a challenge.

“The hardest thing is making the evaluation as objective as possible,” he added. “That suspicion of a fiddle is like a red rag to a bull.”

Connorton advised purchasing organisations to ensure their OJEU notices provided flexibility within the rules. “An OJEU notice is like a party invitation,” she said. “If you say it is fancy dress, you will only get weirdos dressed as playing cards.”

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