Last summer national health and social care provider Turning Point, brought a case against Norfolk county council following its failure to win a contract for services that the council put out for tender. Turning Point was unsuccessful in its challenge, and the reasoning behind the court's ruling has wider implications, not only in terms of local government and social care procurement, but also across the social housing sector.
Until recently, UK legislation imposed a three-month time limit within which a public procurement process could be challenged. However, in October 2011 the government reduced this to just 30 days for most claims. Before the Turning Point case it was thought that in most situations, it would be possible to argue that the time limit would start from when a housing provider officially awarded a contract. The court has now clarified that the time limit for challenges could expire well before then.
The dispute between Turning Point and the council arose as Turning Point alleged that the council had not provided them with sufficient TUPE information regarding employee regulations, and that this had consequently impacted their tender submission. The court ruled that the time limit to bring a complaint began when Turning Point submitted its tender and potentially even as soon as they knew that the information was inadequate. It was thus ruled that the time limit to challenge the decision had since run out.
In real terms, this means that if a bidder wants to complain of unfairness arising from the evaluation criteria or from the amount of information provided in the process, proceedings may need to begin before a contract award notice has been issued.
Many councils and housing associations are no doubt hopeful that this ruling will mean fewer claims, with the expectation that bidders will not want to raise issues halfway through a procurement process. However, feedback from some national contractors suggests that, if it is a choice between bringing a claim before the process is even complete or not bringing a claim at all, many would choose the former.
The difficulty now for procurement teams is knowing how to successfully steer their organisations through this rapidly changing legal landscape. There is the risk of procurements being derailed by bidders at a far earlier stage and therefore it is essential for housing providers to keep in mind the fundamental principles of transparency and non-discrimination.
When bidders raise concerns during the process, these should be taken very seriously. If the issues are not addressed fairly and promptly, the risk of challenge at an earlier stage is now significantly increased.
Andrew Lancaster is a specialist in dispute resolution, construction and procurement law at Anthony Collins solicitors
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