Procurement & Tendering Disputes

Yes, we offer free initial consultations to clients during which you will discuss your construction related dispute with one of our expert lawyers to determine the scope of the issue, the solutions and how we may be able to assist in achieving the best outcome for you.

Our expert lawyers are experienced in both contentious including tendering and procurement issues and non-contentious construction related issues and will be able to provide you with expert advice on your concern. Please do not hesitate to book a free initial consultation with one of our lawyers today.

Procurement and tendering disputes in the construction industry arise when there are disagreements or issues related to the process of selecting contractors or suppliers for construction projects. This can relate to the way tenders are advertised, how bids are evaluated, or the criteria on which a contract is awarded. Such disputes can be between a contracting authority (such as the council) and a bidder or between competing bidders.

Case Example: In a recent case handled by our lawyers, a major contractor challenged the award of a contract, claiming that their bid met the necessary criteria but was not fairly evaluated. Our expert lawyers provided evidence showing inconsistencies in the evaluation process, leading to a favourable resolution for our client.

Our expert lawyers are experienced in both contentious including payment disputes, breach of contract and tendering and non-contentious construction related issues and will be able to provide you with expert advice on your concern. Please do not hesitate to book a free initial consultation with one of our lawyers today.

In the UK, procurement, and tendering, especially for public contracts, are governed by the Public Contracts Regulations 2015 transposing the 2014 EU Directive on public procurement into UK law.. These regulations are in place to ensure transparency, fairness, and equal treatment of all bidders. Additionally, EU directives, although now subject to modifications post-Brexit, have historically influenced UK procurement rules.

While it covers a wide range of topics, there are some key provisions that are particularly relevant to procurement and tendering disputes:

Principles of Procurement (Regulations 18-20):

• Transparency, Equal Treatment, and Non-discrimination: Contracting authorities must treat bidders equally and transparently. This principle ensures that no bidder is given preferential treatment and that the procurement process is clear and understandable.
• Relevance: Disputes often arise when a bidder feels they have been treated unfairly or when the process lacked transparency. The principle forms the basis of many challenges to procurement decisions.

2. Technical Specifications (Regulation 42):

• Objectivity: Technical specifications should be drawn up to allow equal access for bidders and not to create unjustified obstacles to public procurement.
• Relevance: If a bidder believes that the technical specifications are biased towards a specific product or service, or are unfairly restrictive, they can be grounds for a dispute.

3. Abnormally Low Tenders (Regulation 69):

• Investigation: If a tender appears abnormally low in relation to the goods, services, or works, the contracting authority can seek explanations for the tender price or cost.
• Relevance: Ensures bidders are not compromising on quality or contravening legal obligations to provide a lower price, preventing potential future disputes related to non-compliance or failure to deliver.

4. Standstill Period (Regulation 87):

• Minimum Duration: A standstill of at least 10 days is obligatory after notifying the award decision, giving unsuccessful bidders a chance to challenge the decision before the contract is finalised.
• Relevance: This provides a clear window for potential disputes to be initiated. Many challenges arise during this period, either questioning the procurement process or the final decision.

5. Remedies (Regulations 95-104):

• Ineffectiveness: These regulations provide remedies for certain breaches of the PCR 2015. A contract can be rendered ineffective if specific breaches are found, including entering into the contract without proper notice or without observing the standstill period.
• Relevance: One of the primary legal bases for challenges to procurement decisions. The possibility of a contract being declared ineffective is a significant deterrent for contracting authorities to stray from the established rules.

6. Suitability to Pursue Professional Activity (Regulation 57):

• Exclusion Grounds: Lists reasons for mandatory and discretionary exclusions of bidders, such as bankruptcy, non-payment of taxes, or involvement in criminal activities.
• Relevance: Bidders can dispute their exclusion based on these grounds, particularly if they feel they have been unfairly assessed or if the criteria have been applied inconsistently.

If you are navigating the intricate landscape of the Public Contracts Regulations 2015 and need expert guidance, especially in the face of potential disputes, please do not hesitate to give us a call today.

Common reasons for disputes include:

• Alleged bias or favouritism in the selection process.
• Perceived unfairness or lack of transparency in evaluating bids.
• Inconsistencies or ambiguities in the tender documents.
• Disagreements over the terms of the contract once a preferred bidder is selected.

Our team at Go Legal is equipped to handle the complexities of procurement disputes. Please do not hesitate to call us for a Free Consultation with our expert construction team.

Yes, a contractor can challenge a tendering decision, especially if they believe that the decision was made unfairly, without transparency, or if proper procedures were not followed. This can be initiated through legal proceedings, where the aggrieved party seeks a review of the tendering process or decision.

If you believe you have been unfairly treated in a tendering process, do not hesitate. Contact our expert lawyers at Go Legal for a free consultation.

Challenging a procurement decision is a sensitive task, as it is essential to maintain a professional reputation while seeking redress. A construction company can:

• Engage in a Constructive Dialogue: Before initiating formal proceedings, approach the awarding authority for a debriefing or clarification on why the bid was unsuccessful. This promotes transparency and can provide insights without creating animosity.
• Seek Confidential Legal Advice: Engage with expert lawyers like those at Go Legal to understand the strength of your case and the best approach to take.
• Use Discreet ADR Methods: Alternative Dispute Resolution (ADR) methods, such as mediation, can be confidential and less confrontational, helping to maintain business relationships.

Our expert lawyers are experienced in both contentious including payment disputes, breach of contract and tendering and non-contentious construction related issues and will be able to provide you with expert advice on your concern. Please do not hesitate to book a free initial consultation with one of our lawyers today.

In the UK, under the Public Contracts Regulations 2015, a claim related to a procurement decision must generally be initiated within 30 days from the day the claimant first knew or ought to have known of the breach. However, there are exceptions, and the time limit can be extended up to 3 months in certain circumstances.

ADR methods for procurement disputes include:

• Mediation: An impartial mediator assists parties in reaching a mutually agreeable solution.
• Conciliation: A conciliator helps parties identify issues and develop options for resolution.
• Adjudication: An adjudicator gives a decision on the dispute, usually quicker than court proceedings.

We regularly represent our clients at mediations often leading to early settlements. Several of our lawyers are also trained mediators and are also registered members of the Chartered Institute of Arbitrators (CIArb) and the International Mediation Institute (IMI). 

Remedies may include:

• Injunction: Halting the awarding or execution of the contract until the dispute is resolved.
• Damages: Compensation for losses incurred due to the breach.
• Setting Aside the Decision: The original procurement decision can be annulled, and a re-evaluation may be required.
• Re-tendering: The authority may be required to initiate the tendering process again.

To safeguard against such disputes, a construction company can:

• Draft Clear Tender Documents: Ensure that all bid documents are unambiguous, detailing specifications, requirements, and evaluation criteria.
• Seek Legal Review: Engage legal experts, such as Go Legal’s team, to review tender and contract documents to identify and address potential pitfalls.
• Establish Open Communication: Foster transparency by providing potential bidders with clear channels for questions and timely responses.

Our expert lawyers are experienced in both contentious including payment disputes, breach of contract and tendering and non-contentious construction related issues and will be able to provide you with expert advice on your concern. Please do not hesitate to book a free initial consultation with one of our lawyers today.

Best practices include:

• Training: Regular training sessions for procurement teams on the latest laws and regulations.
• Regular Audits: Conduct internal audits to ensure adherence to procurement policies.
• Feedback Mechanisms: Provide bidders with constructive feedback, helping them understand the decision-making process.
• Engage Legal Counsel: Regular consultations with legal professionals, such as those at Go Legal, to stay updated on industry standards and legal requirements.

The OJEU is the publication in which all tenders from the public sector, valued above a certain financial threshold, must be published. Even post-Brexit, many UK organisations still use OJEU for transparency and to access a wider European market. The OJEU process ensures transparency, equal treatment, and open competition in public procurement.

Yes. If a construction company believes it has been unfairly treated or discriminated against during the procurement process, it can challenge the decision. The Public Contracts Regulations 2015 provides grounds for review, including breaches of transparency, equal treatment, and non-discrimination.

Our expert lawyers are experienced in both contentious including payment disputes, breach of contract and tendering and non-contentious construction related issues and will be able to provide you with expert advice on your concern. Please do not hesitate to book a free initial consultation with one of our lawyers today.

In the UK, grounds for challenging a procurement decision are broadly rooted in the Public Contracts Regulations 2015. These grounds include:

• Breach of transparency: If the procurement process lacked clarity or was conducted in an opaque manner.
• Breach of equal treatment: Where the tendering authority shows bias or does not treat all bidders equally.
• Discrimination: Any form of discriminatory action against a bidder based on nationality, organisational size, or other non-relevant factors.
• Failure to adhere to the technical specifications laid out in the original tender documents.
• Violation of procedural rules: Such as inadequate time given for the submission of tenders.

Our expert lawyers are experienced in both contentious including payment disputes, breach of contract and tendering and non-contentious construction related issues and will be able to provide you with expert advice on your concern. Please do not hesitate to book a free initial consultation with one of our lawyers today.

While the Public Contracts Regulations 2015 applies across England, Wales, and Northern Ireland, Scotland has its own set of rules known as the Public Contracts (Scotland) Regulations 2015. Though similar in many respects, there are nuanced differences between the two sets of regulations. Any challenge must adhere to the specific rules of the region where the procurement took place.

At Go Legal, we offer a comprehensive range of services to clients facing procurement and tendering disputes:

• Legal Assessment: Evaluate the validity of your claim, ensuring it is grounded in the relevant procurement regulations.
• Representation: Act as your legal representatives in any challenge or negotiation related to the procurement decision.
• Documentation Review: Ensure all documents, from the tender request to the final bid, adhere to legal standards, reducing the risk of future disputes.
• Expert Witnesses: Engage industry professionals to provide evidence that bolsters your claim.
• ADR: Offer Alternative Dispute Resolution methods, including mediation and arbitration, to resolve disputes efficiently without resorting to litigation.

Facing a contentious procurement decision? Let Go Legal’s experienced team guide you. Contact us today.

The standstill period, often referred to as the “cooling off” period, is a mandatory 10-day duration (which can vary depending on the method of communication) between the notification of a contract award decision by a public body and the formal entering into the contract. This period is essential for several reasons:

• Transparency and Fairness: It ensures that all bidders in a tendering process are aware of the decision and the reasons for that decision before the contract is finalised.
• Opportunity to Challenge: It provides unsuccessful bidders with a window to scrutinise the award decision, seek further information, and, if necessary, initiate legal proceedings to challenge the decision if they believe there has been a breach of procurement rules.
• Prevention of Litigation Post-Contract: By allowing concerns to be addressed before a contract is entered into, the standstill period can prevent protracted legal disputes after contract commencement.

Our expert lawyers are experienced in both contentious including payment disputes, breach of contract and tendering and non-contentious construction related issues and will be able to provide you with expert advice on your concern. Please do not hesitate to book a free initial consultation with one of our lawyers today.

The UK’s exit from the EU has led to changes in the regulatory landscape for public procurement. While many of the EU-derived principles and practices continue to influence UK procurement law, there are distinct shifts:

• New UK-specific Regulations: The UK has introduced the Public Procurement (Amendment etc.) (EU Exit) Regulations 2020, which modifies existing regulations to ensure their operability post-Brexit.
• Official Journal of the European Union (OJEU): The UK no longer publishes notices in the OJEU. Instead, a new e-notification service named “Find a Tender” (FTS) is used for contract opportunities in the UK.
• Future Reforms: The UK now has the autonomy to design and implement a procurement regime tailored to its unique needs, and further reforms are anticipated as the UK seeks to streamline and simplify procurement processes.

Our expert lawyers are experienced in both contentious including payment disputes, breach of contract and tendering and non-contentious construction related issues and will be able to provide you with expert advice on your concern. Please do not hesitate to book a free initial consultation with one of our lawyers today.

A conflict of interest can undermine the fairness and transparency of the procurement process. If you suspect such a conflict:

• Document Your Concerns: Gather all relevant information and correspondences that might suggest a conflict of interest.
• Seek Clarification: Before escalating, seek clarification from the contracting authority. They may provide information that addresses your concerns.
• Legal Counsel: If the conflict of interest is not resolved, consult with legal professionals familiar with procurement disputes to understand your rights and potential remedies.

Subcontractors typically have a contractual relationship with the main contractor rather than the contracting authority. Therefore, they usually do not have direct rights to challenge procurement decisions made by public bodies. However, there are situations where subcontractors might have grounds for disputes:

• Main Contract Provisions: Some main contracts might have clauses that give rights to subcontractors in specific scenarios.
• Disputes with the Main Contractor: Subcontractors can raise disputes with the main contractor based on their subcontract agreement’s terms.

Our expert lawyers are experienced in both contentious including payment disputes, breach of contract and tendering and non-contentious construction related issues and will be able to provide you with expert advice on your concern. Please do not hesitate to book a free initial consultation with one of our lawyers today.

An ‘abnormally low tender’ (ALT) is a bid that raises concerns due to its low price, possibly indicating the contractor may not fully understand the project or might cut corners. In the procurement process:

• Investigation: Contracting authorities must investigate ALTs to ensure they are viable. If the tenderer cannot provide a satisfactory explanation, the bid can be rejected.
• Grounds for Dispute: Disputes can arise if competitors believe an ALT was accepted without adequate investigation or if a contractor feels their ALT was unfairly dismissed.

Our expert lawyers are experienced in both contentious including payment disputes, breach of contract and tendering and non-contentious construction related issues and will be able to provide you with expert advice on your concern. Please do not hesitate to book a free initial consultation with one of our lawyers today.

Yes, there is a distinct difference:

• Open Procedure: Any interested party can submit a tender.
• Restricted Procedure: Only those who have been invited following a pre-selection process can submit tenders.

In terms of disputes:

• Fairness and Discrimination: In restricted procedures, disputes can arise if a party believes they were unfairly excluded from the shortlist.
• Transparency: In open procedures, the criteria for selection and award must be clear and transparent to avoid potential disputes.

Case Example: In a recent case, our team represented a client who believed they were unfairly excluded in a restricted procedure. Upon review, the contracting authority had to reconsider their shortlisting.

Whether you are navigating open or restricted tenders, our team is ready to ensure you get a fair opportunity.

Unsuccessful bidders have a right to feedback. They can formally request a “debriefing” from the contracting authority, detailing reasons for their decision. This feedback can provide valuable insights and may highlight potential procedural errors or unfair practices that can be grounds for a challenge.

If you are an unsuccessful bidder seeking feedback or considering a challenge, we can assist you please do not hesitate to give us a call today.

Governments recognise the vital role SMEs play in economic growth and thus aim to ensure they have a fair shot at public procurement opportunities. In the UK, several measures ensure SMEs’ fair access:

• Breaking Down Contracts: Larger contracts might be broken down into smaller lots to allow SMEs to bid.
• Streamlined Procurement Processes: Simplified and digitized tendering processes reduce administrative burdens and associated costs, making it easier for SMEs to participate.
• Transparent Advertising: Public sector contracts are widely advertised on platforms like ‘Contracts Finder’, ensuring SMEs can easily find opportunities relevant to their business.
• Prompt Payment Initiatives: To protect SMEs from cash flow problems, there are rules in place to ensure they are paid within 30 days for public sector work.
• Equal Treatment: Non-discrimination and equal treatment principles mean that SMEs should not face any unjust obstacles when bidding for public contracts.

VEAT notices are published by contracting authorities in the Official Journal of the European Union (OJEU) to announce their intention to award a contract without a full tendering procedure, based on certain exclusions or justifications.

The implications of VEAT notices:

• Challenge Window: The publication of a VEAT notice initiates a standstill period, typically 10 days, during which time the decision to award the contract directly cannot be finalised, allowing potential challengers an opportunity to contest.
• Legal Safeguard: By publishing a VEAT notice, contracting authorities aim to shield themselves from potential legal challenges later, asserting that they have been transparent about their intentions and reasons.
• Risk: If the justification provided in a VEAT notice is found insufficient or incorrect, the resultant contract can be declared ineffective by a court.

Our expert lawyers are experienced in both contentious including payment disputes, breach of contract and tendering and non-contentious construction related issues and will be able to provide you with expert advice on your concern. Please do not hesitate to book a free initial consultation with one of our lawyers today.