Under the GPA, a contracting authority undertaking a relevant procurement has a duty to comply with the procurement framework set out in the GP Regulations.

The breach of such duty by a contracting authority cannot be made the subject of any court proceedings. However, a challenge may be submitted by a relevant supplier who has suffered loss or damage as a result of the breach, or reasonably risks suffering such loss or damage.

Such a challenge would be brought before the Government Procurement Adjudication Tribunal ("Tribunal") pursuant to the process set out in the GPA and the Challenge Proceedings Regulations.

In theory it may be possible to allege a breach of statutory duties if a contracting authority fails to comply with the guidelines set out in the IM on Procurement. However, such a course of action has not been tested in the courts.

Errant officers may potentially be subject to disciplinary proceedings if they are found to be personally culpable for any non-compliance with the IM on Procurement.

As mentioned in Section 5(a) above, complaints alleging contravention of the procurement rules set out in the GP Regulations will be brought before the Tribunal.

A relevant supplier will need to lodge a notice of challenge with the Tribunal no more than 15 days after the date on which the facts constituting the basis of the challenge first took place.

A supplier who wishes to bring a challenge before the Tribunal is required to, within 15 days from the date the facts constituting the basis of the challenge first took place:

• lodge a notice of challenge the ("Notice of Challenge");
• pay such fee as may be prescribed for bringing a challenge before the Tribunal; and
• serve a copy of the Notice of Challenge on the contracting authority undertaking or who has undertaken the procurement which is the subject of the challenge.

A challenge may brought before the Tribunal by a supplier to whom a contracting authority owes a duty and who has suffered, or reasonably risks suffering, loss or damage as a result of the breach. The duty referred to here is the duty of a contracting authority to comply with the GP Regulations and other regulations made under the authority of the GPA.

Under Section 16 of the GPA, the applicant in a challenge proceeding may, at any time after he has fulfilled the requirements referred to Section 8(e) above, apply to the Tribunal for an order to suspend, pending the disposal of the challenge:

• the procedure leading to the award of the contract for the procurement which is the subject of the challenge; or
• the implementation of any decision made while undertaking such a procedure.

If the Tribunal makes a determination in favour of the applicant, the Tribunal may do one or more of the following:

• order any decision or action taken by the contracting authority concerned in relation to the procurement which is the subject of the challenge to be set aside;
• order the contracting authority to make a decision or take action, in accordance with the applicable regulations made under section 6, in place of that which has been set aside under paragraph (a);
• order the contracting authority to amend any document pertaining to the procurement;
• order the contracting authority to pay to the applicant the costs of participation in the qualification of suppliers, or the costs of tender preparation, reasonably incurred by the applicant for the purposes of the procurement.

In the case where a contract for the procurement has already been awarded, the Tribunal may only order the contracting authority to pay to the applicant the costs of participation in the qualification of suppliers, or the costs of tender preparation, reasonably incurred by the applicant for the purposes of the procurement. If the applicant did not incur any of such costs referred, then the Tribunal may only award the applicant the costs of the challenge proceeding.

Except where the challenge has been disposed of in a preliminary hearing, the Tribunal is required to issue its determination on a challenge within 45 days from the date of lodgment of the Notice of Challenge by the applicant unless there are exceptional circumstances justifying an extension of time.

Subject to limited exceptions, Regulation 31 of the GP Regulations requires a contracting authority to, as soon as possible after the award of a contract in respect of a procurement using open tendering or selective tendering, inform all suppliers who had participated in the procedure of its decision on the award.

We are not aware of publicly available statistics of the number of challenge proceedings.

We are not aware of publicly available details of challenge proceedings.

We are not aware of any decisions issued by the Tribunal to date.

As mentioned in Section 5(a) above, disputes relating to the adherence of contracting agencies to government procurement rules cannot be heard in court. There have been some court decisions on disputes arising from government contracts (i.e., post-award) but these do not relate to the procurement process.