This blog covers the remedies directive for the public sector and when/how you can raise a challenge against a contracting authority.

The EU Remedies Directive was created in 2007 and transposed into UK law with the updated Public Contracts Regulations in 2009. The Directive brought in two very clear and important changes for suppliers to be aware of which were:

In addition, the 2009 Regulations introduced a number of other changes, including:

So what has changed with the 2015 Public Contracts Regulations?

In short nothing has changed. The Remedies as they stand have been included into the 2015 Public Contracts Regulations in Part Three, Chapter 5, Regulations 85-87.

So what can you do if a buyer doesn’t follow the rules?

Under the 2015 Public Contracts Regulations you have a right to challenge a buyer that you feel has not followed the rules during the procurement process or that has unfairly awarded the contract to another supplier.

Many suppliers we speak to are reluctant to raise challenges as they worry about the long term impact of doing so and souring the relationship with the buyer for future work. While we would agree that each situation has to be looked at individually for each business, a challenge raised in the correct way can be a positive step as it will show that a) You know how tendering works and are a serious bidder and b) could provide an opportunity for the buyer to improve practice going forward.

When to raise a challenge:

How to raise a challenge:

There are other avenues to challenge a decision such as the Mystery Shopper service which we will be covering on a later blog along with less direct routes such as the general complaints department for the contracting authority if you feel your challenge would be better received by a third party.

9 Responses

  1. Does anyone have a view of the odds of a successful appeal? Bit of a broad question but we have been winning contracts of a similar nature for years and recent failure appears to be a very odd, given really solid track record of responding and delivering, but also the buyer’s intention to encourage up to 5 responses for a complex and difficult tender – only 2 qualified and one with no previous experience. I suppose I am asking has anyone successfully appealed at PQQ stage and what was that experience?

    1. Hi Alastair,

      Unfortunately it is one of those areas where it totally depends on the situation, the specific tender and how it was administered. Have you tried the Crown Commercial Services Mystery Shopper service as a port of call? They may be able to investigate on your behalf and provide you with an objective overview.


  2. HI,

    we have just given an unsuccessful letter to a supplier in a tender and they are asking the following questions.

    Good afternoon

    Please can we have some feedback on this bid including;

    – To which organisation has the tender been awarded?
    – What technology stack has been chosen, specially which vendors and what offerings?
    – The winning bidders total solution cost?
    – Detail of the winning bidders scoring against ###### in line with the published scoring matrix?

    are these questions allowed to be asked ?

    kind regards

    1. Hi Anthony

      Sorry for the late reply on this one.

      The right to feedback would depend on whether the tender in question was above or below threshold.

      If it was above threshold and therefore subject to the Public Contracts Regulations 2015 you do have to provide all unsuccessful bidders with:
      – the name of the winning bidder
      – the award criteria
      – their scores
      – the winning bidder’s scores
      – the characterisitics and advantages of the winning bid
      – a detailed scoring breakdown
      – information on when the standstill period begins and ends

      If it was below threshold then there are no formal rules. However, if a supplier requests feedback you must respond in 10 working days and it would be good practice to provide them with all the information listed in the above threshold feedback.

      I hope this answers your questions – please feel free to ask if you need any further clarification.


    1. Hi Dawn,

      Yes you can appeal at the PQQ stage in a two stage tender. The general convention is to challenge within 30 days of the breach of process so the sooner you can raise the challenge the better.


  3. On a current framework tender we have been told that we must have an external audit carried out at our own cost prior to award. We have recently undergone an audit for another tender however they will not accept this audit. This will be at a cost of around £1,200 which is a lot to pay if we are not awarded. Is this allowed under EU Procurement Rules?

    1. Dear Laura,

      You don’t specify whether this is a financial audit, or the audit of another aspect such as quality assurance, but the principles are similar in either case.

      Regulation 60 of the Public Contracts Regulations 2015, specifies the Means of Proof relating to the selection criteria and reads as follows:

      Proving economic and financial standing
      (6) Proof of the economic operator’s economic and financial standing may be provided by one or more of the following references:—

      (a)appropriate statements from banks or, where appropriate, evidence of relevant professional risk indemnity insurance;

      (b)the presentation of financial statements or extracts from the financial statements, where publication of financial statements is required under the law of the country in which the economic operator is established;

      (c)a statement of the undertaking’s overall turnover and, where appropriate, of turnover in the area covered by the contract for a maximum of the last 3 financial years available, depending on the date on which the undertaking was set up or the economic operator started trading, as far as the information on those turnovers is available.

      (7) Where the references mentioned in paragraph (6) are not appropriate in a particular case, the contracting authority may require the economic operator to provide other information to prove its economic and financial standing.

      (8) Where, for any valid reason, the economic operator is unable to provide the references or other information required by the contracting authority, it may prove its economic and financial standing by any other document which the contracting authority considers appropriate.

      There is no requirement to provide audited accounts and unless the contracting authority has reason to disbelieve the accounts information you provide this should not be used as a reason to exclude you.

      You say that they will not accept an audit which has recently been completed. Unless there are particular reasons why this audit is unacceptable this appears to be contrary to Paragraph 4 of Regulation 58 which states:

      All requirements shall be related and proportionate to the subject-matter of the contract.

      It is difficult to give you a definitive answer without some more detailed information, but I hope this is helpful?