Our team has considerable expertise advising at all stages of public procurement, providing public authorities with guidance on the commercial and regulatory issues they may encounter in running regulated tenders, as well as advising private companies on what they need to know about winning regulated tenders.
We are experienced in acting for both bidders and authorities in challenges to tender awards and can often help resolve disputes without the need for proceedings to be issued.
Our comprehensive expertise includes:
We regularly advise clients on bringing and defending challenges to procurement awards under the Public Contracts Regulations 2015 (the Regulations). We act for both contracting authorities, advising them on how to avoid challenges and defending them if they do arise, and for unsuccessful bidders who wish to challenge award decisions where they believe errors have been made or processes have not been conducted in accordance with the law.
Although we deal with issuing court proceedings where necessary, we are often able to achieve excellent results for our clients without the need for formal legal action.
Not all public procurements are covered by the Public Contracts Regulations 2015. Some fall below the financial threshold and others involve services or goods which are not covered. However, such public procurements may still be challenged though judicial review proceedings, although in practice this is much less common.
As with challenges under the Regulations, strict timescales apply to bringing judicial review proceedings so it is imperative to act quickly. Our team have the expertise and experience to provide the immediate advice needed to judicially review a procurement decision.
Undertaking a procurement process in accordance with procurement regulations and directives can be a timely and costly. We advise on the preparation of a procurement strategy in advance of commencing the procurement process, which will inform the process and enable the contracting authority to manage time and costs more efficiently and effectively.
We work closely with our clients to formalise their procurement strategies by considering all relevant factors including:
Our procurement team advise on early engagement by market testing and assist our clients by producing all necessary documentation and ensure that the market testing process is legally compliant, transparent and does not distort competition.
We work closely with our clients and their other external advisors, cultivating excellent working relationships and become integral members of the project or procurement teams. This helps us to fully understand our clients’ requirements, aims and objectives and to reflect these in the drafting of tender and contractual documentation.
We draft and/or advise on all tender documentation (including advertisements, contract notices, pre-qualification questionnaires, invitations to tender, invitations to participate in dialogue or competitive negotiation, invitations to submit final tenders, standstill letter/regulation 86 notices, contract award notices and VEAT notices).
Throughout the process, we ensure that the conduct of the procurement process and the content of the tender documentation are legally compliant.
Contracts and Contracting Structures
The form of contract utilised will depend on the services and/or works the contracting authority wishes to procure. We draft all agreements (having reference to the market standard, where these exist) to ensure that the contractual documentation accurately reflects the contracting authority’s needs objectives and risk allocation.
We work with clients and third party organisations (such as, the Chartered Institute of Wastes Management (CIWM) and the Welsh Government) to prepare standard form contracts for repeated use by organisations in their future procurement processes (such as the CIWM standard form contract for the procurement of a waste management contract, which is now utilised by numerous local authorities throughout England and Wales).
We continue to support our clients post contract completion in terms of compliance with and reliance on contractual terms and conditions including performance/default and change in law provisions. We also advise on whether proposed variations to the contract are permitted by the regulations, or whether there is a risk of a new procurement process being required.
Contracting authorities often work together to procure goods, works or services. We advise clients on the variety of different structures and vehicles which can be utilised for effective joint working, and then put together the relevant documentation to effect the chosen structure.
We are experts in memorandum of understandings, inter authority agreements, collaboration agreements, setting up companies (and performing all associated company secretarial work) and creating (and drafting the constitution for) joint committees populated by collaborating local authorities.
Our public procurement lawyers can also advise on the creation of a joint venture company for the contracting authority and the private sector partner to utilise to facilitate the performance of the procured contract.
Risks associated with the procurement process should be kept under regular review and be proactively managed by the contracting authority throughout the process until contract award. We work closely with our clients to ensure the associated risks of any procurement are identified at the earliest stage, and properly managed. Our contentious experience ensures we minimise or avoid such risks.
Risks associated with the commercial terms also need to be identified and allocated to a specific party. Our procurement solicitors prepare risk matrices for clients of the headline risks associated with a contract and facilitate the client’s discussions with bidders as to the most cost-effective allocation of risk.
Contracting authorities are generally statute bound to comply with the Freedom of Information Act 2000 (as amended) and the Environmental Information Regulations 2004. The tender documentation and the awarded contract should therefore include appropriate information and obligations on bidders and the contractor to assist the contracting authority in complying with its statutory obligations. Any contractual confidentiality obligations placed on a contracting authority will be subject to the requirements of these Acts.