When a procurement process goes against them, unsuccessful bidders must rush to identify any challenge they may have and issue a claim before the Authority signs the contract (perhaps as little as ten days). However, the claim issued must be complete and accurate. Late amendments to add claims which could have been included when the claim was issued will be barred.
The initial period before issue can be pressured and the challenger will have very limited information to go on in order to decide whether to issue proceedings. That is, however, no excuse for putting off identifying all the breaches.
In Corelogic v Bristol City Council, 19 July 2013 the unsuccessful bidder issued proceedings based purely on allegations of failure to provide sufficient information for the decision. It later (after the time limits expired) claimed that the underlying decision was (in any event) wrong because of errors in the evaluation and the use of undisclosed evaluation criteria. The assumption must be that the criteria and evaluation arguments were not originally raised because, in the rush to issue, Corelogic felt it did not have enough information to explain them properly.
The Court however gave them no leeway or tolerance. The claims could have been asserted at the time the claim was issued and because they were not they could no longer be brought.
Hence if the challenger can identify a range of possible breaches but fails to include any of them in its claim, it should expect to lose the right to bring that claim. Equally, authorities should keep a careful eye on the exact terms of the claims brought against them and refuse to allow late amendments by a challenger where a claim was overlooked.
John Houlden leads our specialist cross-disciplinary Procurement team. Richard Binns is a litigator conducting procurement disputes.