Public Procurement Litigation

Our lawyers are experts in the field of public procurement litigation, in both bringing and defending challenges and have acted for a wide range of clients in the public and private sector.   

Legal challenges to procurements conducted by contracting authorities have increased significantly in recent years, particularly since the Remedies Directive came into force in England and Wales. The new Public Contracts Regulations 2015 have introduced many new concepts and as such, the need for contracting authorities and economic operators to fully understand their rights and obligations when involved in procurements is important.

Our extensive procurement expertise and up to date knowledge of both domestic and European legislation together with developing case law in this area enables us to establish whether there has been a breach of the Public Contracts Regulations and/or European Treaty principles and advise you on the best course of action to adopt. We have practical experience of dealing with Court proceedings involving all kinds of procurement challenges, including claims involving allegations of ineffectiveness. We also have vast experience of negotiating settlements in all types of procurement disputes, including through mediation.

We are also very experienced in suggesting strategies for avoiding challenge where there has been some fault or error in procedure, so as to “rescue” the procurement and bring the process to a successful conclusion for all parties' benefits without having to recommence the procurement.

Our focus is achieving our clients’ objectives in the quickest and most cost-effective way possible.

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:

  • Evaluation methodologies and reports;
  • 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. Successfully defending NHS England in the first case to consider the NHS (Competition, Procurement and Patient Choice) No 2 Regulations 2013 regarding the commissioning of NHS services by NHS England (and clinical commissioning groups). The case concerned an application for judicial review of a decision by NHS England not to contract with a provider of stereotactic radiosurgery services (SRS) during an interim period pending a services review and national procurement for SRS. The Court concluded that the refusal to contract did not infringe the relevant regulations. [QSRC Ltd, R (on the application of) v National Health Service Commissioning Board and another [2015] EWHC 3752].
  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.
  6. Advising a Local Health Board following allegations made by a developer about a procurement process undertaken by the Local Health Board alleging issues surrounding the selected site for development.
  7. Advising a contracting authority on a procurement challenge issued by an unsuccessful economic operator in the TCC in London alleging lack of transparency, unequal treatment, discrimination and manifest error in relation to the evaluation of tenders. Dealing with complex legal issues including confidentiality of third party documents, confidentiality rings, security for costs, forensic expert evidence and Freedom of Information Act requests.
  8. Advising a contracting authority in relation to a claim issued by an unsuccessful economic operator including issues about abnormally low bids. Advising on next steps following the conclusion of the proceedings.
  9. Advising the Welsh Government on the procurement of its business services program including advising on the most appropriate procurement strategy to adopt; drafting the procurement documents and terms and conditions; drafting and advising on the standstill letters.

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:

  • How to respond to a tender in a way which is compliant with the law but which enables the business to put its best solution forward;
  • 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;
  • The implications of changes to contracts following completion of the procurement process.

Examples of recent instructions include: -

  1. Acting for a private sector company regarding its tender submission to a Northern Irish public body. To include drafting correspondence regarding breaches of the Public Contracts Regulations 2015 and thereafter instructing Northern Irish solicitors to take the claim forward in Belfast.
  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.
  6. Acting for an SME in relation to an incomplete and inadequate standstill letter received from an NHS body; advising on merits of challenge.  
  7. Acting for an SME in relation to a procurement where incomplete information had been provided and which had affected the tender submitted, which resulted in the bidder being disqualified. Successfully securing the abandonment of the procurement.

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Related Knowledge & Resources

The Supreme Court rewrites the law on damages in public procurement litigation

The latest decision to emanate from the procurement litigation between ATK and the NDA, the Supreme Court has ruled on a bidder's discretion to issue a claim within the standstill period and when damages will be recoverable.

Energy Solutions is entitled to recover damages from the Nuclear Decommissioning Authority

In this case the NDA's failed to award Energy Solutions a contract despite them being the most economically advantageous tenderer. The High Court has delivered a judgment that they are entitled to damages from the NDA.

Public procurement gone wrong: High Court finds public authority "manipulated" the tender process for its £4 billion contract

In a landmark ruling in the context of procurement litigation, the High Court has held that the Nuclear Decommissioning Authority ("NDA") "manipulated" and "fudged" its tender process for a nuclear clean up contract worth in excess of £4 billion.

To challenge or to review – that is the question

The High Court recently had to consider the above question in the case of Newlyn PLC and London Borough of Waltham Forest which related to a procurement challenge brought by Newlyn PLC (Newlyn) against London Borough of Waltham Forest (LBWF).