PLC Public Sector reports:
Another week, another government department in Northern Ireland defending a procurement process before the courts. On this occasion the Department of Enterprise, Trade and Investment faces allegations from Citizens Advice Northern Ireland that it did not undertake sufficient due diligence and, as a result, awarded a contract to a charity that would be prevented from providing the services by its own constitution.
Ask any public procurement lawyer and they will tell you that such problems are not limited to the government in Northern Ireland and that public authorities throughout the UK are receiving unprecedented levels of challenges – both formal and informal – to public procurement processes. They will also tell you that there is no sign of the increase levelling off with the new remedies directive coming into force later this year.
All public authorities need to be prepared to deal with unhappy tenderers claiming flaws in a procurement process. A failure to prepare for a challenge will increase the risk of projects being delayed or even completely derailed.
So what can a public authority do to prepare itself and how should it deal with a challenge when it is made? This week PLC Public Sector has published a new checklist setting out the key steps that authorities should follow when preparing for and dealing with challenges. The checklist sets out the headline actions below, which all authorities should follow.
- Train staff to identify challenges.
- Never ignore a challenge.
- React quickly and communicate clearly with the complainant.
- Collate all relevant information.
- Never destroy any information.
- Liaise with the authority’s FOIA team.
- Seek legal advice and not waive privilege lightly.
- Brief everyone at the authority who may receive a complaint.
- Reiterate the importance of confidentiality to everyone involved.
- Be ready to take the appropriate action if there is foundation to the challenge.
- Not be scared to highlight the costs of a cross undertaking if the complainant threatens to apply for an injunction.
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Public authorities also need to prepare themselves for the changes to the remedies that will be available to aggrieved tenderers when the new remedies directive is implemented (the deadline is 20 December 2009). These are outlined in PLC Public Sector’s recently published practice note, Remedies Directive: UK implementation of the new directive.
Finally, it goes without saying that the first step public authorities should be taking is to try and make sure that their procurements are beyond reproach. The most common area of challenge to a procurement process is that the evaluation process was flawed. PLC Public Sector has also this week published a new practice note on evaluating tenders, which sets out how to run a compliant evaluation process.
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