Procurement Litigation in the Public Sector

The Public Sector/Contracting Authorities

We act for a substantial number of public sector organisations throughout the UK including the Department of Health, Welsh Government, NHS England, NHS Wales Shared Services, all Local Health Boards in Wales, NHS bodies including CCGs, local authorities in both England and Wales, and further and higher education institutions, all of which have the potential to be caught by procurement law

We regularly provide advice to contracting authorities on the following:

  • Communication with economic operators during and after a procurement;
  • Whether Invitations to Tender are compliant with the procurement rules;
  • How much information contracting authorities are required to provide economic operators on the notification of a contract award to include issues arising pursuant to the Freedom of Information Act 2000;
  • The length of and/or extension of the standstill period;
  • How to best deal with a procurement challenge brought by an unsuccessful economic operator;
  • Whether to apply to the Court to end the automatic suspension imposed by the Regulations;
  • Interim measures during the period of a challenge.

Examples of recent cases include:

  1. Advising a contracting authority on a procurement challenge issued by an unsuccessful economic operator pursuant to the Public Contracts Regulations and general EU Treaty principles. To include dealing with issues arising from the Freedom of Information Act 2000 and confidentiality of third party documents.
  2. Advising a County Borough Council on a challenge issued by an unsuccessful economic operator alleging breaches of the Public Contracts Regulations 2015, including allegations of manifest errors, unequal treatment and discrimination.
  3. Acting for a County Borough Council in relation to a claim made against it by a national building supplies company which was unsuccessful in its bid as it was excluded from the procurement for failing to submit a compliant bid. The company alleged breaches of the Public Contracts Regulations 2006 and breaches of the EU principles of transparency, equal treatment and non-discrimination. Work included dealing with a number of procurement issues affecting the conduct of the litigation, including repeated threats of pre-action and specific disclosure, confidentiality rings, requests for information under the Freedom of Information Act, issues about procedural requirements, including the TCC eDisclosure Protocol and threats of injunctions to restrain disclosure. Ultimately achieving a resolution at mediation.
  4. Acting for and advising a Local Health Board in relation to a claim issued against it by an unsuccessful economic operator alleging unequal treatment, discrimination and a lack of transparency in the evaluation of tenders. Work included defending an interim application for specific disclosure, advising on an application to lift the automatic suspension and the use of confidentiality rings as a means of protecting confidential documents.
  5. Acting for a County Council in relation to a claim issued in the TCC in London alleging a breach of Regulation 4(3) of the Public Contracts Regulations 2006. Ultimately achieving a successful outcome for the client as the Claimant agreed to lift the automatic suspension following the issue of an application seeking that relief, discontinued the proceedings and paid the Council’s reasonable legal costs.

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