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    EU and UK State Aid and Procurement

    Antitrust & Competition

    In an area requiring very specific expertise, we have a leading position advising companies with respect to the EU and UK rules prohibiting certain forms of direct and indirect state subsidies, and the highly complex rules governing governmental tenders throughout the EU and UK. These areas are highly regulated under EU and UK law, closely monitored by the EC and national authorities in the EU, and can be highly litigious before the UK courts. We advise national governments and awarding bodies, recipients of state support, bidders and third-party complainants, as well as regularly represent such parties before the EC and the European courts in Luxembourg and the CMA in the UK, as well as in procurement matters before national courts in the EU and before the UK courts. Our strength is recognized not only by our involvement in the most significant cases, but also by leading legal directories.

    Capabilities include:

    • State aid compliance risk management assessments
    • Consultations through complex EU/UK procurement procedures
    • Challenging or defending procurement decisions
    • Merger and market conduct advice where public entities are involved

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    Experience Acting for Bidders Challenging a Central or Local Government Procurement Decision

    • Global distributor of electrical supplies and services – Representing in relation to a procurement challenge against a nuclear power plant.
    • Marston Holdings Limited – Representing in its Technology and Construction Court (TCC) procurement challenge in the High Court against Lewisham Council for the provision of civil parking enforcement services.
    • Private medical care practice – Advising in relation to a potential challenge against a procurement award by an NHS integrated care board.
    • Global provider of informatics software – Advising this provider of software to support diagnostic testing in healthcare in relation to a procurement award by an NHS trust.
    • Building services and construction company – Advising in relation to a potential challenge against a procurement award by the housing association L&Q.
    • Vodafone – Representing in a potential challenge against Northern Ireland Electricity in relation to the tender process for the award of a contract for telecommunications services in the courts in Northern Ireland.
    • Marston Holdings Limited – Representing in its TCC procurement challenge in the High Court against Oxfordshire County Council for the provision of civil parking enforcement services.
    • Marston Holdings Limited – Advising in relation to its options following an unsuccessful tender to Liverpool City Council for enforcement agency services.
    • Vodafone – Advising as an interested party in relation to a procurement challenge brought by Fujitsu Services Limited against the Foreign & Commonwealth Office for the award of a contract regarding global connectivity to Vodafone.
    • SRCL Limited – Successfully representing in its appeal of a High Court judgment that dismissed SRCL’s procurement challenge against NHS England in the procurement for the supply of clinical waste services for GPs and pharmacies in the North East of England region. The matter was satisfactorily settled prior to the Court of Appeal hearing. (N.B. The firm did not advise SRCL in its High Court proceedings).
    • Marston Holdings Ltd – Successfully representing in its TCC procurement challenge in the High Court against the Ministry of Justice for the provision of enforcement services. The challenge led to the Ministry of Justice cancelling the contract award and announcing that it would rerun the procurement.
    • National out-of-home media owner – Acting on behalf of this client in relation to potential challenges against a number of (separate and unrelated) procurements by various local authorities regarding advertising concessions.
    • National supplier of courier services – Acting on behalf of this client in relation to a potential challenge against a procurement award by the Food Standards Agency.
    • National supplier of courier services – Acting on behalf of this client in relation to a potential challenge against a procurement award by Great Ormond Street Hospital.
    • National supplier of courier services – Acting on behalf of this client in relation to a potential challenge against a procurement award by NHS National Services Scotland.

    Other UK-related Procurement Experience

    • Sheffield City Council – Representing in its defence of a TCC procurement challenge in the High Court for the construction and operation of the Sheffield Clean Air Zone Automatic Number Plate Recognition Network.
    • Multiple public bodies, local authorities and current/prospective suppliers – Advising regarding new and ongoing procurement procedures, direct awards and contract amendments during the COVID-19 crisis and in light of government guidance.
    • Magnox Limited – Advising in relation to a claim in the High Court by Amalgamated Construction Limited for alleged breach of the performance of a contract following a procurement process supported by the Nuclear Decommissioning Authority.
    • BritNed Development Limited – Advising in relation to a major cartel damages claim in the High Court against ABB AB and ABB Ltd arising out of breaches of competition law during a utilities procurement.
    • Magnox Limited – Advising in relation to its investigation into an apparent abnormally low tender by a potential supplier.
    • Provider of accommodation services – Advising on a £15 million dispute relating to a public subcontract with the Home Office, concerning issues of public procurement law and contractual construction.
    • Waste management services provider – Advising in relation to a dispute concerning the performance and modification of a public supply contract with three local authorities.
    • Provider of managed Wi-Fi services – Advising in a public procurement challenge against a local authority. The local authority agreed to abandon the procurement and rerun the process.
    • Provider of memorial walls – Advising in relation to the procurement requirements for entering into a profit-sharing joint venture (JV) with a local authority.
    • UK Ministry of Defence – Acting in a private finance initiative (PFI) for the procurement of strategic tanker aircraft for air-to-air refuelling.
    • Public Purchasing Organisation – Advising on a range of procurement issues, in relation to expanding its range of commercial activities, and the application of the procurement rules to commercial sales of energy contracts by its subsidiaries.
    • UK Government – Advising on the M25 London Orbital motorway project, including the procurement and planning stages of the £6 billion design, build, finance and operate project.
    • UK Ministry of Defence – Acting in a PFI for the provision of accommodation for the army in the UK.
    • London Underground Limited – Acting in a public-private partnership (PPP) for the upgrade of the London Underground.
    • Healthcare provider – Advising on the application of the Public Procurement Regulations with regard to NHS contracts for the provision of integrated community equipment services.
    • Manufacturer of industrial products – Advising on its ability to participate in public tenders following a finding of liability for a cartel.
    • UK councils and local authorities – Advising on public procurement and state aid issues concerning urban regeneration projects, including major town centre redevelopments.
    • UK Government – Providing with procurement advice for a feasibility study on collective investment vehicle structures.
    • UK local authority – Advising on the state aid and public procurement aspects of its £200 million-plus acquisition of a science park.

      What Is the Procurement Act 2023?

      The Procurement Act 2023 will come into force in the UK in February 2025. It represents a once-in-a-generation change to the way that contracting authorities must procure their goods, services and works. The Procurement Act 2023 replaces several existing statutory instruments, notably the Public Contracts Regulations 2015, Utilities Contracts Regulations 2016, Concession Contracts Regulations 2016 and Defence and Security Public Contracts Regulations 2011. With the aim of modernising the procurement landscape in the UK by consolidating and simplifying existing regulations into a single framework, the Procurement Act 2023 should represent a significant shift towards a more efficient, transparent and flexible public procurement system, designed to better serve both buyers and suppliers.

      Please do review our alerts on the key changes that will be brought about by the implementation of the Procurement Act 2023. Our team of specialists are available to guide you through those changes as required, so please do get in touch with one of our key contacts.

      Read our latest analyses of the UK Procurement Act 2023 in the PDFs below:

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