With ever more outsourcing by public authorities and increasing competition for that work amongst private organisations, public procurement is an integral, but often not fully understood, part of the modern economy. Large businesses have an interest in procurement processes operating fairly, but so do charities, NGOs, social enterprises, unions and trade associations.

Public procurement processes are fast-moving and time limits for challenges to be brought are some of the tightest in the legal system. For actual or prospective bidders, it is essential to take advice and act as soon as there are any concerns about the fairness or legality of a tendering process, whether or not the procurement is formally being conducted under the relevant regulations.

Concerns may only arise after the contract is awarded, for example, if the public authority has used different criteria than those originally published, has failed to take relevant information properly into account or discriminated against a particular type of organisation in a scoring system. Significant problems can also arise during the procurement process itself, including substantive issues such as changes in scope as to what is being procured, and procedural matters such as insufficient time to respond at particular stages.  These will not necessarily lead to the exclusion of bidders, and it can therefore be tempting to await the ultimate outcome. However, this seriously risks leaving it too late for any meaningful action.

Taking specialist legal advice throughout allows bidders to monitor legality and to raise any concerns at an early stage, avoiding unfairness later on and, at the worst, protracted litigation. 

It may also be possible for those not directly participating, but with an interest in the process, such as trade associations and unions, to monitor and ensure a fair process. A specialist procurement solicitor can help identify any risks and ensure they are brought to the attention of the public authority as soon as possible. 

Similarly, for public authorities, legal advice can ensure that the process is done right from the outset.  Careful planning can avoid costly procurement challenges.

Where things go wrong and cannot be resolved, an expert solicitor can ensure the necessary steps are taken to protect bidders’ rights or defend the position of public authorities, seeking resolution through appropriate settlement options or, if that is not possible, through the courts.  

The time frame for legal action is short – just 30 days. Taking early advice does not mean that court proceedings have to be started, but it can preserve that opportunity if it becomes the only option.

Bindmans provide a cost-effective package of specialist legal services tailored to clients’ needs. We work regularly in collaboration with in-house legal services, adding value in identifying and correcting potential flaws. We can also offer specialist training so issues can be identified early and appropriate processes put in place.

Our previous work has achieved positive, cost-effective outcomes for clients. We have particular experience in legal and NHS services procurement but have handled a wide range of other cases. Examples include:

• Leading the legal team representing over 70 legal aid law firms in the largest procurement litigation of its kind, challenging the results of the ‘two-tier’ competitive tender for criminal legal aid services. The Secretary of State abandoned this controversial policy during the litigation
• Advising a property development consortium in respect of a potential challenge to a procurement exercise for a £150 million town hall regeneration project
• Acting for a social enterprise providing property management services challenging their failure to be awarded a number of contracts for which they were the incumbent supplier
• Successfully acting for a leading professor of physical chemistry in an appeal against the European Commission’s refusal to award €5 million in funding to a project he was leading
• Successfully challenging the Legal Aid Agency’s rejection of a bid to undertake legal aid work
• Obtaining a contract for a bidder that had initially not been allowed to participate in the tender for a framework agreement due to a late submission
• Successfully obtaining the rewinding of a healthcare procurement on behalf of a GP consortium not awarded the contract through combined judicial review and procurement proceedings
• Successfully obtaining the withdrawal of a Government policy effectively allowing the ‘blacklisting’ of organisations
• Successfully challenging the Legal Services Commission’s procurement processes for mental health and public law on behalf of four law firms in Public Interest Lawyers and the LSC [2010] EWHC 3277 (Admin), resulting in the LSC undertaking a proper verification exercise and consultation and impact assessments under s.49A Disability Discrimination Act 1995
• Advising a major non-pharmaceutical health goods and service provider and its representative trade association on issues relating to public procurement exercises in the healthcare sector
• Obtaining reinstatement in a long-running procurement process for a bidder wrongfully excluded before the final stage on the basis of previously unpublished criteria
• Successful challenges to unfair government procurement processes for a major advertising agency and an apprenticeship provider

Our areas of expertise include: