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DWF successfully advises local authority in defence of public procurement challenge

30 August 2019
Healthcare | DWF
DWF's public sector team recently advised Cornwall Council in its successful strike out a procurement challenge issued by an incumbent service provider of sexual health services.

The incumbent provider had not submitted a tender during the re-procurement but sought to prevent the Council from awarding a contract following the conclusion of the procurement.
 

Significance

  • a procurement challenge must be issued in Court within the 30 day challenge period (beginning with the date when the challenger first knew, or ought to have known, that grounds for starting proceedings had arisen) or it risks its claim being time-barred and struck out;
  • although public procurement law allows the Court to extend this 30-day period up to three months if it considers that there is a "good reason for doing so", this is not satisfied by the challenger simply considering its options to challenge and "investigating"; and
  • the duty to provide disclosure under public procurement law applies to bidders that have submitted bids rather than a wider audience of potential challengers (i.e. those who did not submit bids).

 

Background

The incumbent provider, Royal Cornwall Hospitals NHS Trust (the "Trust"), issued a claim in respect of the outcome of the public procurement process, which was the award of the contract to a new service provider which would result in cost savings for the Council. 

Though the Trust did not submit a bid as part of the procurement process, it sought to challenge the Council's decision to set a budget for the services at a lower level than previously costing the Council. The Trust alleged that the reduced budget was insufficient to meet the level of service provision despite the outcome of the procurement proving otherwise.

In addition to striking out the Trust's claim for being issued outside the statutory 30-day period, the Trust's application for specific disclosure of documents from the Council was also dismissed.
The Trust also brought a judicial review claim, which it later discontinued, in light of the outcome of its procurement claim.

With the Trust's claim being struck out, the automatic suspension on contract award was lifted, allowing the Council to proceed with award of the contract to the third party which was successful following the Council's procurement process.

 


If you are a public body in receipt of a procurement challenge, or a bidder which is considering challenging the outcome of a public procurement exercise, you should contact a member of our national public sector team to discuss your options and next steps.

Further Reading

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