Under the procurement regulations, an organisation engaged in a procurement exercise should allow a 'standstill period' of 10 days to elapse between notifying the tenderers of the successful party and awarding the contract. If an unsuccessful tenderer raises a legal challenge to the procurement process during the standstill period, the organisation cannot proceed to award the contract without first obtaining an order from the court.

In a recent case from Northern Ireland (Rutledge Recruitment and Training Limited v Department for Employment and Learning) the court lifted the suspension during the standstill period and allowed the Department to proceed with the award of a contract for training services.

Various arguments were put forward by Rutledge in relation to unfair treatment during the procurement exercise, including the manner in which a previous procurement exercise for the same services was terminated and the comparative experience of Rutledge and the successful party. The court found that there was no unfair treatment.

Rutledge further alleged that there was abuse of the methodology for scoring the tenders. The court found that there was no evidence of such abuse and, importantly, the court would only consider a review of the method of scoring the tenders where there was manifest error. The court considered that the public interest was best served by allowing the Department to award the contract, as various individuals were depending on the commencement of its training programme.

Therefore, although any aggrieved tenderer may bring a court action during the standstill period, clearly the court will only find in their favour if they have a good argument for either unfair treatment or manifest error in the procurement process.

If you are concerned about a potential challenge, please contact our procurement team to discuss