Procurement in a Nutshell – How not to conduct a procurement challenge
19th January, 2018
This week's Nutshell examines the circumstances surrounding whether it is acceptable to bring a procurement challenge; and the conduct which constitutes such a challenge being considered reasonable.
In order to do so, the update analyses the High Court’s decision in R (On the Application of Hersi & Co Solicitors) v The Lord Chancellor (as Successor to the Legal Services Commission)  and looks at how not to conduct a procurement challenge.
The case concerned a firm of solicitors (Hersi) who unsuccessfully tendered for the award of contracts to provide publicly-funded legal services relating to immigration, asylum and mental health work in the London region. Hersi was one of 218 firms that bid for the work but, along with 90 others, it was judged unsuccessful.
The tender procedure required bidders to answer seven “Selection Criteria” questions; however, despite answering the first three, Hersi failed to provide responses to the final four. Consequently, they were awarded zero points for these omissions and subsequently failed to achieve a score satisfactory enough for them to be successful in the process.
Hersi made a number of allegations including that:
- The defendant should have sought clarification of their non-answers; and / or
- The answers to the questions were plain from the other parts of the tender and should have been scored accordingly; and
- There was an inequality in the treatment shown to the claimant and the other tenderers.
Finally, some seven years after the initial procurement process, the matter was heard as a judicial review before the High Court.
Ultimately, the High Court refused to allow the claim; however, the judgment is particularly useful as a result of the judge’s in-depth, and often scathing, analysis of the challenge itself.
Allegations of unfair treatment
Mr Justice Coulson was particularly unsympathetic towards Hersi’s allegations of inequality and the basis for which the argument was made. In line with this he said:
“The claimant’s case on comparators could not have been more broadly based [purporting] to make comparisons with the treatment of over 120 different applicants in this competition, regardless of whether they were ultimately successful or not…
In my view this entire comparison exercise was misconceived… The use of the word “comparable” cannot be taken too far. In order to be a proper comparison, the relevant treatment of another tenderer by the Contracting Authority must be the treatment that that tenderer received in respect of the questions / answers which the aggrieved party has put in issue.”
Consequently, it is clear that when alleging unfair treatment, accurate and properly indicative comparators must be used in order for the claim to be successful.
Apparent disregard of previous jurisprudence
Another aspect of the proceedings which Mr Justice Coulson was unimpressed with was the apparent disregard of previous, and similar, judicial decisions arising from the procurement. Commenting on this, he pointed out that:
“I was referred to six reported decisions arising out of the defendant’s 2010 legal aid procurement, the very exercise with which this case is concerned. The challenges in those six cases were based on a variety of grounds, including some of which are the same as, or very similar, to the claimant’s challenge in this case. They all failed.”
By ignoring this previous authority, and seeking to bring the case irrespective of the prior findings, Hersi was guilty of unduly increasing the burden faced by the court – especially given that:
“No reason was proffered as to how or why I should depart from the views previously expressed by those judges.”
From this, it is clear that when bringing a procurement challenge subsequent to similar claims having already failed, a party must ensure that it is capable of differentiating its allegations from previously unsuccessful claimants.
Slow manner of the litigation
One final aspect of the case that Mr Justice Coulson was critical of was the “abysmally slow and haphazard fashion” of the proceedings. In this regard, he commented that:
“it seems to me that the delays in this case were inexcusable; secondly, and more importantly for this purpose, I consider that the claimant’s conduct of this case was wholly unsatisfactory. It cannot be right that in the modern age, a case of this kind can take seven years to get to trial…
No regard has been had to the orders of the court… I very much hope that no case ever comes to trial in the TCC again with a six year procedural history.”
Once more, those considering bringing claims should be aware of this and note that they risk frustrating and upsetting the courts should there be a considerable delay in the time taken for proceedings to be brought.
Why is this important?
The judgement is useful for all parties looking to bring legal proceedings following a failure in a procurement process. When analysing the judgment, it is clear that the court will take a negative view on claims which are unduly drawn-out; especially where they follow already decided judgements on a similar matter. Parties should be aware of each of the above points and must properly assess whether it is appropriate to bring a challenge.
If you require any advice or assistance in bringing such a claim, please contact us via our procurement hotline on 0191 204 4464.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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