As noted in section 3, the risk of a challenge to the tender or award process is considered higher in PPPs than in a conventional procurement. To mitigate this risk, the procuring authority must have sound preparation and procurement processes, and a legal team and relevant subject matter experts prepared to handle potential challenges — including the ability to resolve disputes in the interests of moving the process forward.
Challenges may come after tender launch, or after award of the contract. In the latter case, they will usually be based on potential deviations from the evaluation and selection rules set out in the RFP.
If there is a legal challenge to an award decision, the procuring authority must engage legal resources and relevant subject matter experts to respond to the challenge and defend the award decision. A typical process for such challenges is that a judge will analyze the challenge and may decide to reject it. Alternatively, the judge may temporarily suspend the awarding process so as to analyze and judge the matter more carefully. Or the judge may declare the award decision invalid, which may result in an award to the second ranked bidder. In a worst case scenario, it can even lead to a suspension of the process with the need to re-tender the project contract, depending of the country’s normal practice.
As the European PPP Expertise Centre (EPEC) PPP Guide describes, according to the EU legislation, “a minimum ’standstill period‘ of 10 days is required between the PPP contract award decision and the actual conclusion of the contract to allow rejected bidders time to conduct their review and decide whether they want to challenge the award”.
“An aggrieved bidder can bring an action to have the PPP contract rendered ineffective if the authority contravened EU procurement rules in a serious manner. Previously, the sole remedy that an aggrieved bidder could seek was to be awarded monetary compensation, but nowadays an aggrieved bidder could seek cancellation of the PPP contract. How the various rights and obligations of the parties will be determined in this case is left to national law.”