Appendix 11. Challenge to procurement decisions
Local authorities should encourage anyone wishing to challenge a procurement decision to discuss their concerns with the authority.
Single Point of Enquiry
The Scottish Procurement Directorate operates a Single Point of Enquiry 84 service which service providers can approach to seek advice or raise concerns about public procurement exercises. On receipt of an enquiry, the Scottish Procurement Directorate works with the service provider and procuring body to address issues of concern.
Legal challenge
The award of a Part B service contract may be challenged by any service provider which has suffered loss or damage as a result of a breach of the procurement rules 85. Cases can be brought in the Sheriff Court or Court of Session. Save in very limited circumstances 86, the only remedy available to service providers is damages.
Prior to the award of a contract, a service provider may challenge the decisions or actions taken by a local authority. In this situation, the court can order the local authority's decision or action to be set aside, as well as awarding damages to the service provider.
Complaint to the European Commission
Any person may bring a breach of the European procurement rules to the attention of the European Commission by submitting a formal complaint to its Internal Market Directorate-General 87. Where the Commission decides to investigate the complaint and is satisfied that a breach has been committed, it will usually try to resolve the issue through a process of negotiation with the Member State concerned.
Where a resolution cannot be found, the Commission may institute infringement proceedings against the Member State in question before the European Court of Justice in Luxembourg. If the European Court of Justice finds that a breach has been committed, it has the power to order the Member State to stop the practice which is contrary to the European procurement rules and to pay a fine. In some circumstances, the European Commission can also ask the European Court of Justice to award interim measures to stop the contract being performed.