The Procurement Bill: Resolving disputes more quickly? We'll still watch this space

At the end of a procurement process, authorities will be required to provide all bidders who submitted an assessed tender with information about the assessment of that tender. All assessed bidders will also receive a summary of the assessment of the winning tender. However, it's not clear what level of detail will be required of the assessment summaries as this is not prescribed in the Bill. The word "summary" suggests an overview / something high level with only key points, whereas we know most unsuccessful bidders, whether considering challenge, would like more detail in relation to why they scored well or not so well, and what  could be improved on in future. 

Authorities will also need to publish a CAN setting out an intention to enter into a contract.

Finally, authorities will be required to publish a contract details notice within 30 days of entering into the contract (or 120 days for light touch contracts) and publish a copy of the contract (where the estimated value is over £2million) within 90 days of entering into the contract.

The Bill gives power to Ministers to make regulations that specify the form and content of such notices and how these notices are to be published. This suggests that secondary legislation will follow in due course. 

A change from current procurement rules is the length of the mandatory standstill period – currently 10 calendar days from the standstill letter but changing under the Bill to 8 working days, beginning with the day of publication of the CAN. While not offering a challenging bidder much more time (if any), this does help avoid the difficulties of weekends and bank holidays falling within the standstill period and bidders having less working-day time to consider whether to issue a claim. 

Limitation periods overall remain the same as currently (generally 30 days from the date of knowledge of the breach) but for claims to set aside a contract the period is now the earlier of the end of that 30 day period or 6 months from entry into the contract (currently the 6 month period applies regardless of earlier knowledge).

The Bill takes some risk away for authorities when it comes to signing contracts, as the automatic suspension on contract award will only apply if an authority has been notified of an issued claim within the standstill period. This means that if a bidder doesn't issue a claim, or notify the authority of its issued claim, by the end of the 8th working day, the authority is not prevented from entering into contract.

Where a suspension is in place, under current law, the test for an automatic suspension has developed from the test for injunctive relief from the American Cyanamid principles. The introduction of the Bill gave legislators an opportunity to develop a test that is specific and relevant to procurement processes. However, the current draft of the Bill does still utilise two principles of the three limb American Cyanamid test and explains how these can be interpreted in procurement challenges. The test will now be that in considering whether to maintain the automatic suspension, the court must have regard to:

(1) the interests of suppliers, including whether damages are an adequate remedy for the challenging bidder (the second limb of the American Cyanmid test): and 

(2) the public interest (usually considered under the balance of convenience test of American Cyanamid).

The public interest provides for specific examples that should be considered and balanced, between:

• upholding the principle that public contracts should be awarded and/or modified in accordance with the law; and
• avoiding delay of the supply/services in the contract.

Cross undertakings in damages will also still be considered – i.e. the challenging bidder will still likely be required to provide a cross undertaking to compensate the authority if the suspension is maintained to trial and it is then found that the authority was not in breach of the rules.