Procurement Litigation in the Private Sector

The Private Sector/Economic Operators

We act for a number of private sector clients ranging from large multi-national companies to SMEs.

We regularly advise bidders on the following:

  • What to look for when considering procurement documents, including addressing issues such as vagueness and/or ambiguity in content or drafting;
  • The information to which economic operators are entitled following the notification of the contract award;
  • Whether a procurement has been conducted lawfully and whether a right to bring a challenge exists;
  • Options available to economic operators where there has been non-disclosure, or a change of criteria and/or the use of sub-criteria or the evaluation of such criteria and/or sub-criteria;
  • Standstill obligations and periods;
  • How best to challenge decisions made by contracting authorities;
  • Limitation periods applicable for bringing claims in the Courts;
  • Implications of issuing Court proceedings and the effect of the automatic suspension;
  • Whether to oppose or consent to an application to lift the automatic suspension imposed by the Regulations.

Examples of recent instructions include:

  1. Advising an economic operator on and during a simultaneous procurement challenge to and judicial review of a contracting authority's published ITT documentation during a procurement process. To include issues arising around the automatic suspension, sealing of the court file, consolidation of the case management of the proceedings, confidentiality obligations and ultimately, the successful conclusion of the dispute.
  2. Acting for a private sector company and providing support in its tender submission to the NHS in relation to the creation of cancer care pathways and dealing with complicated contract drafting and negotiation of terms for the consortium bidder.
  3. Acting for a private sector company wanting to bring a legal challenge to a procurement process which had been carried out by an NHS Trust in England based on inconsistencies between the ITT and contract documentation; successfully preventing the award of the contract.
  4. Acting for a large commercial company threatening to bring a legal challenge to a procurement process which had been carried out by a University, persuading the University that it had marked the PQQ response incorrectly and securing the client’s progression to the second stage of the procurement.
  5. Receiving repeat instructions from a number of private sector clients to advise on the merits of bringing legal challenges to a variety of different procurement processes throughout the UK on the grounds of lack of transparency, unequal treatment, discrimination, use of undisclosed sub-criteria and/or methodologies and manifest error.

Related expertise

Related Knowledge & Resources

The NCA wins the first round in its application of "McMafia" laws

The NCA wins the first round in its application of "McMafia" laws after the High Court lifted reported restrictions this week.

London Underground procurement challenge hits the buffers

A High Court judge has granted London Underground permission to enter into "distinctively prestigious" contracts with Siemens for the introduction of new London Underground trains despite an on-going challenge by some of the unsuccessful bidders.