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Procurement

To challenge or not to challenge?

We’ve all been there. We worked really hard on a bid; the team put everything into it and we had a really strong and compelling submission. But then we lose – either to an incumbent, someone we’ve never heard of before, or someone who we know doesn’t have certain USPs we do. Or the worst outcome, simply on commercials (and doesn’t that just make you feel as a Bid Manager that you could have written anything, it was just coming down to the price?)

I’ve also been on the other side of the scenario, when my firm had our contract award challenged. The client found in our favour with the challenge, but they launched a full investigation into the procurement process which took several weeks. The investigation found the evaluation criteria was open to interpretation, and it was announced the procurement would be re-run on that basis. It was devastating at the time, particularly as the scope of requirements was changed in the re-run, and our USP from the first procurement was no longer relevant; second time around, we lost to the incumbent.

But in which scenarios would – or should – you challenge a procurement decision? Would you challenge on the basis that you strongly believed your responses deserved higher scores? Or maybe because the evaluation criteria weren’t clear, clarifications hadn’t particularly clarified the situation, and feedback suggests other bidders had interpreted things differently? That you don’t believe the winning bidder could possibly offer the service for the price quoted? Or a combination of all of these?

You should not challenge from a position of ‘sour grapes’ that you lost, as this could damage any existing and/or future relationship with the awarding authority/client. What if something changes in the intervening years between this award and the next procurement? There may be different management (on both sides) and/or different requirements, and you would want to bid after all? Will the client have a long memory, and you’re discounted before they’ve even read a word? One organisation I worked at decided “well we may as well challenge, we won’t be working with them again after this!” We did have grounds for a challenge, points were awarded for the presentation stage which hadn’t previously been disclosed, and the feedback given was highly subjective. Our challenge was rejected, and then six years later, the re-tender was published; I included our previous challenge as a factor for consideration in our bid evaluation matrix.

If you are considering challenging a procurement decision, there are some excellent online resources available, although from my previous life I would recommend the Mills & Reeve Procurement Portal. Its ‘challenging a decision’ section explains you must be sure the scores and feedback give sufficient weight to your challenge. You will then need to send a formal letter to the awarding authority, within the stated standstill period (that’s what it’s there for!), which should include:

  • Any concerns you have about scores;
  • Queries about the reasons given for a mark or the adequacy of the information given;
  • Asking for the standstill period to be extended; and
  • Asking for documents such as the evaluation notes of individual evaluators, notes of evaluation meetings particularly moderation meetings, and the report required under Regulation 84.

From there, it depends on the response of the awarding authority and, if they reject your challenge, whether you want to pursue. If the latter, you should seek legal advice before taking any further action, as there is a formal legal route which involves court ordered suspension; so you need to be completely sure you have a case to challenge before going down this complicated, expensive and potentially damaging route.

Having been on both sides, I would urge anyone to think carefully before pursuing a challenge – on the basis that there is unequivocal proof that something is not right with the scoring and/or feedback, and it is not just a defensive move. It is a tough journey for everyone involved and can damage client relationships – and your future bidding potential – moving forward.