Businesses across the UK spend significant time and resources writing bids and tenders. This often combines expenditure on consultants such as ourselves as well as the opportunity cost of the time of their own internal resources. When you put substantial effort into a must-win bid it can be incredibly frustrating if the bid is unsuccessful as well as costly to your business.
Many businesses decide to challenge a decision when they are unsuccessful particularly when it is a must-win bid with a substantial impact on their business. The scope and opportunity to challenge a decision exists due to Regulation 91 of the Public Contract Regulations Act. This stipulates a 10-day ‘Standstill Period’ prior to the tender being formally awarded. It is in this period that you have the opportunity to challenge the result.
There is a new Procurement Act which will be implemented on the 24 February 2025. It incorporates the same option and opportunity to challenge a decision under Section 106. It’s important that clients are aware of the possibility to challenge a decision, and just like a bid/no bid process, carefully think about whether or not they should challenge a decision during the standstill period.
Is it worth submitting a tender or bid challenge?
At Tsaks Consulting, we have seen many businesses challenge award decisions over the years. It’s a careful balance. We generally recommend that if it is early on in the tender process, and you notice an issue, it’s a good idea to challenge it. The tender can be retracted and re-released or even a clarification provided.
Where the tender has been awarded, it can be costly from a legal and opportunity cost perspective to challenge the tender result. Therefore, we generally recommend making an assessment of the pros and cons of challenging the result of the award and only challenging it if here is a substantial or critical concern based on fact and evidence. It’s also a great idea to ask an independent third party of their thoughts or feel free to ask our bid and tender writing consultants based in London and across the UK.
Why do businesses in the UK challenge a tender or bid decision and outcome?
There are many reasons why as a business would decide to challenge a decision. One of the key rules of thumb comes down to whether or not you are of the view that you have been treated fairly, and whether or not you believe your submission has been evaluated in a fair and transparent manner. Most of the time, if you were relatively confident of winning the bid, and you have issues or concerns with the process you may decide to challenge the outcome. Key reasons our clients mount a challenge to the bid decision including:
- If there was an ‘abnormally low’ bid which was successful. If you are the incumbent provider, or have a strong underrating of your industry and the scope of the bid you will be in a strong position to provide a price estimate for the bid. Your pricing will generally be on market. Where the is a successful bidder that has submitted a very low price for their bid that would not cover the costs of delivering the service it is generally a warning sign. In these situations it may be worth considering challenging the outcome.
- A problem scoring or marking the response that leads to an anomaly. This is usually due to an error in the procurement process. It doesn’t arise where you have for example scored an 8 and were looking to score a 9. However, if you were looking to score a 9 and have scored a 3 or 4, it may indicate there was an issue with the scoring process and how it was market. The evaluators may have missed part of your response. In this situation it may be worth challenging the outcome.If the tender feedback doesn’t make sense then it can be worth challenging the outcome.
- If there was a process-based issue. For example, when awarding the contract and the decision, there is a process that needs to be followed. If the process and relevant regulations were not followed then you may challenge the decision.
- When the questions seem to favour a particular bidder. Sometimes you simply read a tender and think that one of your competitors wrote it for themselves to suit their business. Although this will generally not be the case, specifications of a bid or tender can tend to favour particular bidders from time to time. If you believe this may be the case you may consider challenging the decision.
- If there was inappropriate communication outside the official channels or any potential corruption.
The challenging process isn’t as simple and easy as saying that you proposed a better price. There are many different factors that impact the success of a bid and your final score than pricing. In addition, the challenging process is a formal process where you need to detail your reasoning why a process wasn’t followed properly or your grounds for challenging the result. Most of the time, the procurement process is very long and detailed and extremely formalised so you will need to compelling and correct reason to mount a challenge.
At Tsaks Consulting, our team of tender consultants generally recommend having an independent stakeholder review your grounds for mounting a challenge to ensure they are fact and evidence based – and don’t simply reflect your disappointment at being unsuccessful with a tender or bid. You should also seek professional advice to ensure you follow the correct process to challenge the result of your unsuccessful bid.
Timing and process for lodging a challenge
You can challenge the tender process at any time. If, throughout the tender preparation process, you identify anything that is non-compliant with the Public Contracts Regulations 2015 you can put forward a challenge. We recommend that you challenge sooner rather than later. The key rule is that you need to start the proceedings within 30 days of identifying the issue. At Tsaks Consulting, one of the first tasks we carry out when writing a bid or responding to an ITT or RFP for our clients is to review the documentation. We will of course notify you if we find any potential issues.
We will also work with you to put forward clarification questions where required in order to ensure you are writing your bid or tender from an informed position. We will of course advise you to seek clarification from the authority with which you are tendering (for example and NHS Trust or CCS) and then proceed based on their response.
At Tsaks Consulting, we’re focused on winning tenders and bids. Therefore, when a tender is challenged and then recalled and the process restarted, we see it as a positive as it is the most efficient way to manage the issue and our clients are able to get on with the process of bidding and winning.
What is the ‘standstill’ period in the tender challenge process
The standstill period is the period of time you have after the award notification to make a challenge. The process involves:
- Making contact with the Authority. You will need to put everything forward in terms of reasoning for he challenge, evidence and as much detail as possible. Communicate this to the authority.
- You also need to apply for an extension to the standstill period so that there is additional time for our request for qualification to be reviewed.
- You then request the Regulation 84 report.
In order to have a decision reversed, it generally needs to happen within 30 days or else they lead to monetary compensation options.
Call our team of bid and tender writers today to discuss how we can assist with your next bid or tender or if you have lost a bid or your tender is unsuccessful, speak to us about a bid review where we can help you understand why.