Challenges To A Procurement Process And How To Avoid Them

Challenges To A Procurement Process and How To Avoid Them

At Minerva, full compliance with procurement regulations is not just a nice-to-have – it is at the heart of everything we do. Our role is twofold: to ensure that the processes we run are fully compliant, and to support and upskill our clients so that they can feel confident about their own procurement activity.

This blog draws on a recent webinar in which we explored why challenges arise, how to prevent them, and what you should be doing at every stage of the process to stay firmly on the compliance straight and narrow.

Our Commitment to Compliance and Training

We invest heavily in our own development so we can give you the very best support:

• We have completed the Transforming Public Procurement through the Government Commercial College – nine in-depth modules with a Certification Module to evidence understanding.

• We have also undertaken the Regulated Procurement Academy via the Achilles Academy – six full days of intensive training.

• We regularly attend sector events and stay close to legislative and regulatory changes.

Why does this matter to you? Because our job is not only to keep your procurements compliant, but to help you understand what good looks like and what to avoid. The webinar – and this blog – is all about giving you practical pointers on what to do, and what not to do.

Why Do Procurement Challenges Happen?

The examples discussed in the session have not all resulted in formal procurement challenges – but they very easily could have done. The aim is not to scare anyone, but to help you:

• Avoid formal challenges and disputes

• Prevent “grumpy letters” from disgruntled bidders

• Run smoother, more transparent, more defensible tender processes

It is worth remembering that taking a challenge to court is expensive. The cost of starting proceedings is around £10,000, so bidders will usually only proceed if they believe they have a strong case. That said, bidders often invest substantial time, money and staff resource into preparing a bid. When they lose, disappointment is entirely understandable.

The Three Main Types of Challenge

Challenges usually fall into three broad categories: tender design, procedural issues and evaluation problems.

1. Tender Design Challenges

These arise where the structure or content of the tender itself appears unfair or unclear. Common issues include:

• A perceived bias towards the incumbent supplier.

• Overly specific technical specifications that focus on a particular brand rather than functionality.

• Missing or unclear evaluation criteria and scoring methodology in the documentation.

Tender design must be brand-agnostic and focused on what you need the solution to do, not who you’d ideally like to buy it from. You must also clearly publish how bids will be scored.

2. Procedural Challenges

These relate to the process you follow. Typical examples include:

• Failure to publish a Tender Notice on the Find a Tender service when required.

• Insufficient detail in Assessment Summaries at the end of the process (these now require significantly more information than under the old regulations).

• Entering into a contract before the end of the eight working day standstill period.

It’s important to note that:

• The eight working days relate to “automatic suspension”. If an unsuccessful bidder issues court proceedings before the expiry they can prevent you from awarding the contract.

• Bidders, however, have 30 days in total to issue court proceedings where they believe a breach has occurred and damages may be appropriate – even when they cannot stop a contract being entered into.

So the standstill period is not the whole story; challenges can still arise within that wider 30-day window.

It’s also important to note that the 30 days applies from the date the bidder knew or strongly suspected that the contracting authority had committed a breach.

3. Evaluation Challenges

Evaluation is one of the most problematic areas. Issues here might include:

• Incorrect exclusion of a bidder at an early stage, for example on a mandatory pass/fail question.

• Award criteria or weightings not applied as published.

• Changes to award criteria or weightings after bids have been submitted.

• Mathematical errors in scoring – for instance, flawed Excel formulas.

• Averaging panel scores instead of reaching a consensus score.

Under the new legislation, there is some limited scope to amend award criteria part-way through a process if you have clearly allowed for this in the tender notice and then follow that process precisely. However, just because you can does not mean you should. Any changes add risk and complexity – and absolutely must not happen once bids have been submitted.

The Tender Process

Before You Start: Planning is the Most Important Stage. If there is one message to take away, it is this Fail to prepare, prepare to fail.

Planning is the most important stage of any tender. Get it right, and you give yourself the best chance of a compliant, defensible and effective process.

Key planning steps include:

1. Valuing Your Tender Correctly

You should:

• Check the current procurement thresholds and make sure that you choose the right process based on the value of your tender. Make sure that you include VAT when you value your tender. The thresholds are increasing in January 2026.

• You may need to include staffing costs in the valuation, even where staff are not your employees but are part of the contract.

Choosing the correct procedure depends on this valuation, so it is not something to gloss over.

2. Choosing the Right Procedure

Ask yourself:

• Is this for goods, services or works?

• Is it a concessions contract?

• Does it fall under the light touch regime?

Different procedures come with different rules, thresholds and exemptions. Choosing the wrong one can expose you to unnecessary risk.

3. Getting the Specification Right

A poor specification is one of the fastest ways to create problems later on. If your requirements are unclear or incomplete:

1. Bidders will be left guessing what you actually want.

2. You’re likely to see inconsistent bids, especially on pricing, which is often heavily weighted in award criteria. As a result, there will a real difficulty if you have discrepancies in how you fairly evaluate the bids.

3. Discrepancies will lead to a lot of clarification questions. In the worst case scenario, you risk awarding to a bidder who ultimately cannot deliver what you need – resulting in further complexity, potential re-award, and possible challenge from other bidders.

4. Protecting Sensitive Information

Before issuing tender documents, always redact sensitive or competitor information.

We have seen a real example where an incumbent’s pricing was left visible on an asset schedule and issued as part of the tender pack. Competitors gained access to commercially sensitive pricing, placing the incumbent at a clear disadvantage and others at an unfair advantage. The only realistic option was to abandon the tender.

5. Publishing Evaluation Criteria

You must:

• Set out all evaluation criteria and scoring methodology in full.

• Include anything bidders need in order to understand how their bid will be assessed.

If everything is fully detailed in the documents, it does not all have to appear in the Tender Notice – but the notice must clearly signpost where the information is available.

6. Make Sure You Do What You Say You Are Going To Do

Although it may sound obvious, make sure that you do what you say you are going to do:

• If you say, for example, that you’re going to shortlist three to presentation, make sure you do that.

• If you say you’re going to use a particular scoring methodology, make sure you do just that.

All of this should be outlined in the Tender Notice. It is also important to outline what you might do. You could, for example, state in your Tender Notice that you are going to have an optional negotiation stage to your tender process. Once the bids are in, you can choose whether that is necessary but always outline it in the Tender Notice if it is above threshold. It is good practice, even if your tender is below threshold, to ensure that your bidders are very clear about what it is that you intend to do through this process. If you have not included it then you cannot do it: or if you do, you are likely to be challenged.

Preliminary Market Engagement: A New Emphasis

Under the new Procurement Act, there is greater emphasis on procurement as a “cradle-to- grave” activity, including what happens before you launch the formal tender.

If you conduct pre-market engagement, such as:
• Bidder discovery calls

• Online Q&A sessions

• Face-to-face supplier events

then all potential bidders must be made aware of these opportunities. Best practice is to use a preliminary market engagement notice so that everyone has a fair chance to participate. If some bidders did not attend, you must ensure they still have access to the information – for example by providing a link to a webinar recording or sharing notes, and referring to these in your tender notice and documentation.

During the Process: Records, Site Visits and Timelines

7. Documentation and Record-Keeping

In most court cases, the key question is not simply what decision you made, but how you got there. A well-documented process can protect you even where bidders might disagree with the outcome.

Keep clear, contemporaneous records of:

• Evaluation discussions and rationale

• Decisions to exclude or shortlist

• Any clarification exchanges and responses

Do not create documents after the event to “backfill” decisions – this has been exposed in court and is strongly discouraged.

8. Managing Site Visits Sensitively

For schools and trusts, site visits can be particularly sensitive, especially in areas like catering where on-site teams are present during service.

You should:

• Brief colleagues in advance so they understand what to say – and what not to say.

• Be honest about what is working well and what is not, but avoid being disparaging or overly critical, especially if the incumbent is present. (we’ve had more than one occasion where incumbent providers have withdrawn from opportunities where this has happened)

• Liaise with the incumbent to ensure their on-site staff (e.g. catering staff) are reassured that they are not personally on trial; the bidders are assessing the service model, not individual employees.

The aim is to sell your opportunity professionally, while treating existing staff fairly and respectfully.

9. Allowing Enough Time

We generally recommend up to 12 months for an above-threshold procedure. When planning, build in time for:

• Stakeholder engagement

• Drafting and refining the specification

• Bidder submission (respecting minimum legal timescales)

• TUPE consultations (at least 30 days)

• Mobilisation, especially for complex or high-value contracts

• Local Government Pension Scheme (LGPS) Admitted Body Status processes

• Drafting (pre-tender) and agreeing (post tender) the legal agreement

• Internal governance and approvals at key stages

If you compress the timetable too much, you increase the risk of mistakes and limit bidder participation. Good suppliers may simply decide not to bid if they feel they do not have enough time to prepare a high-quality submission.

After the Award: Feedback, “Grumpy Letters” and Deadlines

1. Don’t Backfill Documentation

Once again, creating documents after an award decision to justify what you did is a major red flag. Any notes or commentary from panel members should be made at the time of evaluation, not retrospectively.

2. Evaluation Discipline

To minimise the risk of challenge:

• Apply your published award criteria consistently.

• Test your scoring spreadsheets rigorously for formula errors.

• If you have used a panel of people to score bids you must not average the score. You must seek a consensus score. This involves bringing the panel together to understand why they have awarded specific scores so that you can eventually reach a single consensus score per question.

3. Handling Complaints and “Grumpy Letters”

Not every unhappy email is a formal challenge – many are simply expressions of frustration. However, do not ignore them.

Ask yourself:

• Do they raise any valid points?

• Is there something that has not been explained clearly?

Where there is substance to the concern, it is far better to address it promptly during the standstill period. This can:

• Prevent escalation to a formal challenge

• Demonstrate openness and good faith

• Build better long-term supplier relationships

4. Written Feedback Only

Under the new Act, you must provide an Assessment Summary that gives unsuccessful bidders feedback on:

• Their own bid

• The winning bid

This should include scores and qualitative feedback, enabling them to understand why they were not successful and how to improve next time. We strongly recommend written feedback only, and advise against post-award verbal meetings. One well-known legal case in the education sector showed that unclear, emotional verbal feedback did not start the limitation period; only written feedback did. Verbal sessions can therefore create confusion and risk rather than clarity.

5. The 30-Day “Date of Knowledge” Rule

As mentioned above; the 30-day period for bringing a challenge runs from the date the bidder knew or strongly suspected a breach had occurred. This can sometimes actually work in your favour: if a scoring error or questionable criterion was visible from the outset and the bidder did not challenge at that time, a later challenge may be less likely to succeed.

However, many challenges arise from information in the Assessment Summaries – which means the clock may only start ticking at the very end of the process.

Where to Find Additional Information and Support

If you would like to explore these topics further or need help with a live or upcoming tender, there are several sources of support:

• Minerva website
Visit our website for case studies, blog posts and resources covering all aspects of procurement in the schools and trusts sector.

• You can also subscribe to our weekly newsletter for updates on regulation changes, practical tips, examples of best practice and alerts about future webinars.

• Future webinars and training
Our upcoming webinar will focus on TUPE, the Local Government Pension Scheme (LGPS) and staff pension obligations – an area where many schools and Trusts struggle. We will be joined by pensions law expert Ginevra Gatrell (Partner, Pensions) from gunnercooke llp, who will cover TUPE basics, LGPS requirements, schools’ obligations and the contractor’s position.

• Official guidance
For those who want to delve into the detail, you can also refer to official government guidance on the Procurement Pathway site.

Keeping your procurement process compliant, fair and defensible is not about perfection; it is about good planning, clear documentation and honest communication. With the right preparation and support, you can significantly reduce the risk of challenge and run tenders that deliver the best outcomes for your school or Trust.