Public Procurement

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Hempsons has an established procurement practice and reputation for the provision of high quality legal advice and project management in this area. Procurement law is a fast moving and evolving area of law. We act for both contracting authorities and suppliers.

Procurement law presents a number of challenges for commissioning and procurement teams in ensuring that they comply with the Regulations, overarching EC Treaty principles, and the requirements of policy and guidance.

Suppliers should also be cognisant of the rules to improve their chances of successfully bidding/challenging.

All need to be cognisant of the requirements and opportunities that the new Public Contracts Regulations 2015 offer. These regulations came into force on 26 February 2015 and replace the Public Contracts Regulations 2006 for processes commenced after that date. Otherwise the 2006 regulations continue to apply.

The new regulations result in a significant change in practice for both contracting authorities and suppliers. As leading advisers in procurement law, we are best placed to advise upon what the changes will mean for you. For example, the distinction between Part A and Part B services has been abolished, a new Light Touch Regime introduced for a limited number of services, minimum time limits for tenders have been reduced and new procedures/process requirements have been introduced. It is imperative that you are aware of the new requirements, the opportunities that they present and the impact they will have on your processes/when bidding.

For Contracting Authorities/Commissioners

We provide preventative procurement advice to manage risk, design robust and defensible procurement processes and defend procurement law challenges. In addition to all other policy and legal requirements impacting on this area of law, the team has an in-depth understanding of the National Health Service (Procurement, Patient Choice and Competition (No. 2) Regulations 2013 (known as the Section 75 Regulations) and other commissioning obligations, and therefore provide advice to commissioners on their legal obligations.

We also advised the commissioners on the successful application to lift the automatic suspension of the contract award in Newcastle upon Tyne Hospital NHS Foundation Trust -v- Newcastle PCT and others and have successfully defended a number of procurement law challenges. We continue to advise on both bringing and defending a significant number of legal challenges and apply the knowledge gained from our work to reduce and manage risk in client’s processes. We are also advising on one of the first innovation partnership procedures under the new regulations.

Procurement challenges are an increasing area of risk as a result of the implementation of the Remedies Directive into UK law together with the application of recent UK and European case law. We regularly defend challenges brought against processes which arise more frequently as a consequence of bidders being provided with many additional tools and routes to challenge. We also work closely with our specialist competition law team.

We can help you by advising upon:

  • Procurement strategy
  • Market engagement/consultation
  • Procurement processes
  • Procurement documentation
  • Drafting contracts/specifications
  • Confidentiality and FOIA
  • Defending procurement challenges
  • Designing evaluation methodologies

For suppliers

We advise and assist suppliers navigating the complex interaction of common law rules, regulations and European Treaty principles to successfully achieve their objectives and win tenders. We also assist suppliers with gathering information to improve future bids and in challenging processes where the relevant process has not been conducted in accordance with the relevant legal principles.

Suppliers should also be cognisant of the requirements and potential opportunities that flow from the implementation of the new Public Contracts Regulations 2015, which came into force on 26 February 2015. These new regulations replace the current Public Contracts Regulations 2006, and implement the new European Procurement Law Directive.

It will be imperative that suppliers are awa re of the changes and the impact that they could have on your business. Until April 2016, different rules apply if you are bidding for healthcare services commissioned by CCGs and NHS England and we can advise you on the implications of the National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013 on the commissioning process.

We can help you by advising upon:

  • Procurement strategy
  • Domestic Public Law, EU regulations, Directives and EC Treaty obligations, including the new regulations
  • Review of tender documentation and preparation and/or scrutiny of proposed bid submission to assist in tender opportunities and maximising your chances of success
  • Challenging procurement decisions/processes.

Suppliers need to consider how to approach any procurement to ensure that they maximise the chances of being successful at pre-qualification stage and in their tender submissions.

Whichever route is chosen by the public authority, we can advise you on how to comply. We utilise our experience in managing and advising on complex procurement processes to advise on completion of PQQ and tender documents, the implementation of tender strategies and seeking to challenge tender processes that are non-compliant, unfair and/or lack transparency.

We assist bidders in understanding decisions made by contracting authorities, and in challenging those decisions where appropriate, including through the use of methodologies to obtain effective debrief information under the regulations and though Freedom of Information legislation. We can also advise on potential competition law issues that may arise as a consequence of commissioners’ proposals.


Key Contacts

Picture of Adrian Parker

Adrian Parker

Partner, Harrogate
Procurement, Corporate, Commercial
01423 724029
Picture of Andrew Daly

Andrew Daly

Partner, Newcastle, Harrogate
Procurement, Commercial
01423 724015
Picture of Jamie Foster

Jamie Foster

Partner, London
Corporate, Commercial
020 7484 7594