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    Public Procurement – UK

    Public procurement refers to the purchase of goods, services and works by central or local governmental departments and other public bodies. In order to ensure that taxpayer money is spent on the best possible solutions in the market, contracting authorities must carry out their procurements efficiently and in compliance with the relevant rules, regulations and other requirements in place at the time.

    Our team of public procurement specialists has a wealth of experience advising both contracting authorities and suppliers to the public sector. Our expertise spans a broad range of industries, from healthcare to parking services, and from waste management to defence.

    What Is the Procurement Act 2023?

    In the UK, the Procurement Act 2023 will come into force on 28 October 2024, representing a once-in-a-generation change to the way that contracting authorities must procure their goods, services and works. The legislation replaces a number of existing statutory instruments, most notably the Public Contracts Regulations 2015, Utilities Contracts Regulations 2016, Concession Contracts Regulations 2016 and Defence and Security Public Contracts Regulations 2011, which are largely drawn from EU directives. With the aim of overhauling and modernising the procurement landscape in the UK by consolidating and simplifying existing procurement regulations into a single, cohesive 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 contracting authorities 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.

    Why Choose Us

    • We have a vast range of experience in procurements across a variety of sectors.
    • By advising both contracting authorities and suppliers to the public sector, our team is able to provide practical, pragmatic and considered advice about possible issues throughout the entire procurement process and, in particular, in relation to challenges to procurement processes.
    • We have extremely good relationships with specialist public procurement barristers, and have worked with many of them.

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    Our clients include both contracting authorities and suppliers that provide goods, works or services to public bodies or utilities. We have deep experience across a wide range of sectors and we are, therefore, able to advise across a broad spectrum of procurement-related issues. We provide advice to our clients on both contentious and non-contentious procurement matters and at all stages of the procurement process, including after contract award.

    More procurement processes than ever before are being legally challenged in the courts. Potential repercussions for non-compliance by contracting authorities are severe and successful challenges by suppliers can lead to procurement processes needing to be abandoned and re-run and significant damages paid to a successful claimant. We do our best to help our clients to avoid procurement disputes and expensive litigation to the extent possible. However, where questions arise regarding the legality or integrity of a procurement process, we have the expertise to work with our clients to either successfully challenge the award decision or, alternatively, to defend the contracting authority against the allegations.


    How Do We Support Contracting Authorities?

    We help contracting authorities to run compliant procurement processes from start to finish, ensuring that evaluations and decisions are well documented at the correct time, and that the processes run in accordance with the procurement rules and the tender documentation. We help contracting authorities to:

    • Consider and plan their procurements effectively, ensuring that processes and associated timetables run as planned
    • Get their evaluation criteria right, ensuring that the tender documentation is clear and unambiguous so that all suppliers are bidding (and are evaluated) on the same basis
    • Ensure that, during the evaluation process, they have not used undisclosed criteria, committed manifest errors of assessment, or failed to treat all bidders equally
    • Ensure that they keep sufficient records of following their own procurement processes
    • Identify, record and manage any conflicts of interest
    • Ensure that reasons for the final moderated scores are sufficiently detailed and explain why each of the bidders’ responses was marked as it was, including details of why any of the evaluators agreed to deviate from their individual evaluated scores
    • Defend themselves against threatened or actual legal challenges by unsuccessful bidders or assist in considering and deciding on other resolution options
    • Mitigate procurement risks if an existing contract has to be modified for whatever reason


    How Can We Assist Suppliers?

    We provide help and assistance to suppliers by:

    • Providing advice and input as they put together their bids, including reviewing responses and assessing them against the published evaluation criteria
    • Providing counsel and advice in the event that they feel that an ongoing procurement process is being run non-compliantly or unfairly
    • Providing advice in relation to possible grounds of challenge if they are unsuccessful, helping them work out whether it is in their best interests to challenge the decision and, if so, how
    • If they win a tender but the procurement is challenged, helping them manage their position effectively

    View PDF Capability Statement

     

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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.

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

       

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