Guide to Judicial Review: Public Procurement Tender

Introduction

When a public body awards a contract through a competitive tendering process, the law requires that the procedure is fair, transparent and compliant with procurement regulations.

Unfortunately, errors or irregularities sometimes occur, which can have serious consequences for bidders. Where this happens, Judicial Review may provide a remedy.

In our latest Guide, we explain the Judicial Review process in challenging a Public Procurement tender decision and highlight the strict timeframes involved.

What is a Judicial Review in Public Procurement?

Judicial Review is the process by which the High Court examines the legality of a decision made by a public authority.

In the context of tendering, it allows an unsuccessful bidder to challenge the award of a contract if the process was flawed. Importantly, Judicial Review does not revisit the merits of the bids themselves but focuses on whether the decision was reached lawfully.

What are the Common Reasons for a Judicial Review?

Some of the typical issues that can give rise to judicial review include:

• Lack of Transparency: Where the evaluation criteria or scoring method was unclear or not properly applied

• Unequal Treatment: Where one bidder was unfairly advantaged or disadvantaged

• Manifest Error: Where the decision is based on obvious mistakes in assessment

• Breach of Procurement Law: Including EU and national regulations governing public contracts

What Remedies Available are available in a Judicial Review?

If the Court finds that the tender award was unlawful, it may:

• Set aside the award decision

• Order the contracting authority to re-run the process

• Award damages in certain circumstances

What are the Time Limits for a Judicial Review?

Challenges to procurement decisions are subject to strict time limits.

In general, proceedings must be initiated within weeks of the decision. For that reason, bidders who suspect irregularities should seek legal advice immediately. Delay can mean losing the opportunity to challenge the award altogether.

Why does Legal Advice Matter?

Public Procurement law is highly technical and the Judicial Review process can be complex.

Early advice from Solicitors experienced in Procurement Disputes is vital in protecting your position and maximising your chances of a successful outcome.

How Can Lavelle Partners Help?

At Lavelle Partners, we advise bidders on all aspects of the Procurement process, including challenging flawed tender awards. If you believe that a tender you participated in was handled unfairly, contact our Litigation & Dispute Resolution team to discuss your options.

Further Information

For expert legal advice on Public Procurement and Judicial Review Disputes, please contact Ciarán Leavy, Partner or Rory Knight, Solicitor in our award-winning Litigation & Dispute Resolution Team.