You must be joking!

The tennis season is now a rapidly fading memory and we know that Andy Murray will not be crowned Wimbledon Champion this year, but the centre court witnessed tense moments as calls and key decisions were challenged. An area where we are seeing more decisions being challenged is in the area of public procurement; the number of challenges to procurement decisions is on the rise, with more cases being brought before the courts than ever before. Only last month it was reported that a multi million pound challenge has been made to Greater Manchester's procurement of their waste management contract by an unsuccessful contractor who considered their bid was not treated fairly.

Construction lawyer Martin Jones explains more.

The public sector as a whole spends £ 175 billion a year with third party suppliers. Given the current economic climate, it is expected that more companies are likely to challenge their unsuccessful bids for contracts under the Public Contracts Regulations 2006 ("the Regulations) in order to secure their piece of the £ 175 billion pie.

The latest in a long line of cases is Amaryllis Ltd v HM Treasury (sued as OGC Buying Solutions), which has provided new guidance on the critical time periods that govern challenges for breaches of the Regulations. Under the Regulations, an action should be brought "promptly and in any event within three months from the date when grounds for bringing of the proceedings first arose". This case emphasises the importance when challenging publicly procured contracts of acting promptly within the three months. In addition to the flurry of challenges, the new Remedies Directive (Directive 2007/66/EC) which is expected to be implemented by December 2009, is likely to have an impact on the number of challenges.

The case of Federal Security Services Ltd v Chief Constable for the Police of Northern Ireland [2009] NICh 3 concerns another challenge where a Part B services contract under the Regulations was challenged for failing to have a 10 day standstill period between the award decision and the contract being entered into, despite the fact that Part B services are exempt under the Regulations from providing a standstill period. The judge ruled that although there was no automatic obligation to provide a standstill period it could apply in "exceptional circumstances", which include where there is cross border interest or a very high value contract, among other circumstances. The new Remedies Directive does not require a standstill period, but it may apply in certain individual cases.

Like competing for a Grand Slam in Tennis, competition for securing the winning bid for contracts under the Regulations is going to heat-up, with some McEnroe style challenges going through the courts. Unfortunately, it is not going to be champagne and strawberries for everyone, but it certainly provides for an interesting time in the realm of procurement.

For more information on this or for general construction advice, please contact Martin Jones in Construction & Engineering.