A Tender Subject: Challenging procurement outcomes under the Procurement Act 2023

2025 has already seen the biggest shift in the UK’s procurement regime in recent years.

The Procurement Act 2023 (“the Act”) came into force on 24 February 2025, replacing the Public Contracts Regulations (“PCR”) which had been in place since 2015. Given that procurements commenced prior to 24 February 2025 remained subject to the PCR, many providers will only recently have begun considering what impact the introduction of the Act will have on the conduct of procurements, particularly their ability to challenge procurement outcomes.

While many aspects of the Act are similar to the PCR (albeit with some changes in terminology), the Act differs in some significant respects, and bidders which adopt the same approach as they have followed in the past may find that they have missed key opportunities.

Some key steps for bidders which are dissatisfied with the outcome of a procurement are set out below. As with the previous regime, it is essential for bidders to act quickly, and in at least some regards, the timescales have become even more demanding.

(1) Considering the information provided

A bidder’s first opportunity to identify concerns about the outcome of a procurement process typically will arise on receiving the outcome notification from the contracting authority.

Under the previous regulations, contracting authorities were required to treat suppliers equally and without discrimination and to act in a transparent and proportionate manner. The Act imposes similar obligations, requiring that authorities treat suppliers “the same unless a difference between suppliers justifies different treatment”. If different treatment is justified the authority must take steps to ensure that it does not put the supplier at an unfair advantage or disadvantage.

When considering the information provided, suppliers should look for:

• any errors in the scores they have been awarded
• whether any undisclosed criteria have been applied when scoring
• inconsistent scoring (e.g. areas which the successful bidder appears to have received credit for which they have not, or conversely where they have been penalised for something which the successful bidder has not, despite it appearing from the feedback that both bids had similar features)
• whether the feedback awarded to it allows it to properly understand why it has been awarded the score it has, and why the winning bidder received the score it did.

(2) Assessment Summaries

The Act replaces the PCR’s standstill letters with a mandatory ‘Assessment Summary’ as part of the outcome notification process. These notices are to be provided to all bidders who submit ‘assessed tenders’, not just those who have been unsuccessful. An assessed tender is one which has been assessed by the contracting authority – which, for processes with multiple assessment stages, is only where a bid reaches the final stage. Where a bidder’s submission is rejected at an earlier stage, or is not formally submitted, an authority is not obliged to provide the bidder with an assessment summary.

Under the Procurement Regulations 2024 and its associated guidance, which sit alongside the Act, an assessment summary should clearly outline:

• a summary of the assessment methodology including the scoring criteria, its relative weighting and how each criteria was assessed by reference to the scores available
• the reasons a bidder received the score it did, and where applicable, why it was not given the score immediately above that
• the total score, and any sub-total scores, for the tender against all the award criteria
• the same information in respect of the bid deemed the Most Advantageous Tender.

While these changes should, in principle, better allow bidders to understand the rationale behind their scores, unsuccessful bidders should still carefully consider the feedback given against the scoring methodology to confirm that the reasons given allow them to properly understand the rationale for the score they have received.

(3) Time limit

Should a bidder consider that a contracting authority may have breached its obligations under the Act, they shall, in most cases, continue to have 30 days from becoming aware (or the point at which they reasonably should have become aware) of the breach to commence proceedings. As such, prompt action will remain essential, as bidders will continue to have only 30 days from when they become (or should have become) aware of the breach to file a claim form with the Court, and for this to be issued.

Importantly, however, that deadline is no longer extended if it falls on a non-working day. For example, if the 30th day is a Saturday, the challenge must be filed by Friday, rather than the following Monday.

While the Court will continue to have a discretion to extend the deadline for up to 3 months, we anticipate that the bar to do so will remain extremely high and will be applied only in genuinely exceptional circumstances. It is unlikely to apply, for instance, in circumstances where a bidder has become aware of a potential breach but has not been provided with sufficient information to form a view on whether or not its claim would have a reasonable prospect of success.

(4) Standstill period and automatic suspension

Under the PCR, authorities were required to observe a 10 day standstill period before they could sign a contract, to permit bidders to consider the outcome and (if necessary) seek legal advice. The Act revises this period to 8 working days, beginning on the day the contract award notice is published.

Notably, any bank holiday in the UK (including Scotland and Northern Ireland) will not be included as a working days, regardless of whether it  is observed in the part of the UK where the procurement is taking place – for example, Monday 1 December (which is the Scottish holiday St Andrew’s Day) will not be counted for the purposes of the standstill period, even though it will be a ‘working day’ for authorities in England and Wales.

Unlike the PCR, which triggered an automatic suspension preventing contract signature upon notification that a claim had been issued, the Act limits automatic suspension to claims filed and notified to the contracting authority during the standstill period. This increases the pressure on bidders to act swiftly once they are aware of a potential breach, as delay risks forfeiting the ability to suspend the contract award, and potentially limits remedies available.

The Act does not address whether automatic suspension will still take effect where an authority has agreed to extend the standstill period. While we anticipate that this will be the case, this will be significant for bidders in highlighting the need to seek urgent advice once concerns have been identified, to avoid missing the opportunity to obtain the automatic suspension.

It remains open to contracting authorities to apply to lift the automatic suspension so as to permit contract award.

(5) Serving the claim

Under the PCR, challengers were required to serve the claim form within 7 days of issuing proceedings.

There is no similar provision under the Act, and a bidder will now have up to 4 months from the issue of the claim form to serve its claim.  This is likely to cause delay to contracting authorities, particularly if the claim has triggered the automatic suspension, and may offer an opportunity for further discussions between the challenger and the contracting authority. However, the authority may serve a notice requiring the challenger to serve its claim form by a set deadline or to discontinue its claim, and bidders will still need to be ready to set out the full detail of their claim soon after issuing.

This will likely shift the pace and dynamics of early stage litigation. It is notable, however, that in order to issue a claim, bidders will still be required to pay the relevant Court fee (typically £10,000 in procurement claims). As such, issuing a claim protectively to avoid limitation while hoping to obtain supporting evidence later is likely to remain a high risk approach.

(6) Remedies

As under the PCR, there are two categories of remedy available to a bidder – those available before contract signature, and those which are available once the contract has been entered into.

If intention to award has been indicated, but the contract has not yet been executed, a successful challenger may obtain an order setting aside the decision or requiring the authority to take another action (such as to reconsider its decision or re-evaluate the scoring), may be awarded damages, and/or any other order which the Court considers appropriate to remedy the issue(s) identified.

Once the contract has been executed, however, the only remedy generally available will be damages. In specific circumstances (generally where the contracting authority has failed to take a mandatory step to give notice of the procurement or failed to observe a mandatory standstill) a bidder may be capable of having the contract set aside, meaning that the contract is treated as being without effect from the date of the Court order. Where there is an overriding public interest in not setting the contract aside(such as if it relates to defence or security interests or the provision of public services), it may instead be capable of being modified or the volume under the contract reduced. However, this is only where specific conditions under the Act are met and it is in the public interest to do so.

As such, bidders should always have in mind from the outset what they wish to achieve by way of their challenge:

• can concerns be resolved pre-litigation by the provision of further information?
• how much would scores need to change to impact on the overall outcome of the process?
• What deadlines need to be met in order to obtain the automatic suspension?
• would damages be a sufficient remedy if the contract were to stand?

How we can help

Preparation and submission of a bid is a time and resource intensive process and can often have a significant financial cost to a bidder. Obtaining expert advice promptly once you become aware of concerns regarding a procurement process or outcome will remain crucial.

Our procurement team specialises in providing pragmatic advice to both bidders seeking to challenge the outcome of a procurement, and contracting authorities defending a challenge.

If you have any questions regarding this update then please get in touch with our specialist procurement team, or leave your details below and one of the team will contact you.