There are two stages in challenging the award of procurement contracts.
- The first concern disputes around the bidding process and often involve public authorities. Bidders for a contract can bring a challenge against the contracting authority if they feel that the tendering process was unfair, the rules were violated, or that the bidder was unjustly excluded to the advantage of another bidder. These disputes are bound by very tight time-limits, often a little over a week called the ‘suspension period’ following the decision of the contracting authority to award the tender and before the contract is signed with the successful bidder. A claimant will usually file a request quickly to the competent court or authority (arbitral tribunal) listed in the tender before the contract is issued to obtain an automatic suspension of the contract for a longer period. At this stage negotiation or mediation processes may be used. A settlement could be reached to re-advertise the tender. Public bodies will provide details in their procedures for an appeal process and the body responsible for resolution of such disputes. Public authorities in many countries have adopted mediation to ensure that relationships between such parties remain non-adversarial.
- The second type of dispute concerns to the contract itself. Dispute resolution clauses will not be negotiable, and the bidder must conform to whatever dispute resolution method is stated in the contract – litigation, arbitration or combined mediation and arbitration. However, this does not preclude one party from resolving the dispute using an ADR method which is quicker and more cost-effective
