Procurement Act 2023 top tips: Challenge stage

The Procurement Act 2023 goes live in just one week - on Monday 24 February 2025. We're counting down with a series of top tips to help get you ready for the transition. This week we consider practical steps to take to get ready for potential challenges under the new regime. 

For Contracting Authorities:

1. Remedies: Be aware that the remedies potentially available to challengers - including damages and ineffectiveness (now rebranded as set aside) - will remain similar to the existing regime.  
2. Timescales: These will remain short, at least for the early stages of challenges, so challengers will need to move quickly. Have key team members and records available during the standstill period so that you can respond to any challenges or concerns. 
3. Claim forms: The rules around service of claim forms have changed, with the result that you may need to wait for a longer time before you can be confident that there is no challenge to your procurement process. 
4. Automatic suspension: There is a new test for lifting the automatic suspension at Court. Whether it will lead to different outcomes is as yet unknown. You might want to factor this uncertainty into your plans for mobilisation. 
5. New grounds of challenge: The shift from the familiar general principles of EU procurement law will lead to the development of new challenge grounds and uncertainty regarding the application of the new regime. It is however likely that the Court will likely seek to retain oversight of “manifest errors” by evaluators.

For Bidders:

1. Remedies: The remedies potentially available if you successfully challenge a procurement have not changed materially. The primary remedies remain the automatic suspension preventing contract signature, damages and ineffectiveness (now rebranded as set aside).  You can still stop the contract being entered into by issuing a claim at Court.  
2. Standstill period: This has been amended to 8 working days (instead of 10 calendar days). A key change is that the automatic suspension on contract signature is now only available if a claim is issued at Court during the standstill period. 
3. Timescales: These will remain short, at least for the early stages of challenges. Diarise when the procurement outcome is expected and have key members of your team available to review assessment summaries and consider whether challenging is appropriate. 
4. Seeking advice: Ensure you seek specialist legal advice as soon as you become aware there may have been a breach (or risk losing the right to complain about this later). DO NOT wait for the award decision, particularly if your concerns relate to the tender documents themselves.     
5. Contract Change Notices: Have appropriate alerts set up for Contract Change Notices where you have been unsuccessful but remain interested in the contract. If the CCN provides for a voluntary standstill period, be prepared to raise issues during that period if you consider the change was not permitted. 
6. Using the Procurement Review Unit: Consider use of the PRU if you become aware of systemic procurement issues, including during the contract term. Although it is not set up to deal with complaints by individual bidders (and specifically not complaints about particular procurements), engagement with the PRU will help to identify market-wide issues that should be investigated and rectified.

You can visit our PATH page for more articles, guides and videos on the PA23. Alternatively contact Laura Wisdom or another member of our procurement team if you are interested in a tailored workshop or discussion on issues specific to your organisation.

The shift from the familiar general principles of EU procurement law will lead to the development of new challenge grounds and uncertainty regarding the application of the new regime.