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November 16, 2017 11:44 AM | Posted by Prandy, Helen | Permalink

Spoiler alert - the following blog will mention Brexit several times.

A frequent query we see through our portal and at our seminars is what is going to happen to public procurement law post Brexit.  The answer we invariably give is “No-one really knows” and with the seemingly intractable issues of the ‘divorce bill’, citizens’ rights and the Irish border still seemingly no nearer to resolution and it looking likely that Britain will miss the latest ultimatum to advance to trade talks with the EU 27 any time soon public procurement law is the last thing (probably) on the minds of Mrs May, Mr Davies and their plethora of officials.

One of the things the Brexiters have been very keen on is the idea of ‘taking back control’.  In legal matters this means ousting the jurisdiction of the European Court of Justice and reinstating the sovereignty of the Supreme Court. 

Post Brexit no-one currently knows what the trade options are but one which is possible, and touted at the time of the Referendum,  is a position similar to that of Norway which is within a free trade area (the EEA) but not part of the EU.  Those countries submit to the jurisdiction of the EFTA court which is equivalent to the ECJ.

Not so long ago the Supreme Court found that to establish a claim in damages for breach of the procurement rules a “sufficiently serious breach” was required (see our blog post here).  However the EFTA court has just found that there is no requirement to show the gravity of a breach in order to recover damages for breach of the EEA rules on public procurement.

So if, at some time in the future, the UK adopts the trade rules of the EEA, or something similar, in order to facilitate trade with the EU 27 will it be this decision of the EFTA court which allows a claim for damages or the contrary decision of the Supreme Court?

Like many Brexit related issues this one may take years to work out but it highlights that wherever we go with public procurement in the future the devil may, as always, be in the detail.

You can read the judgment here: Fosen-Linjen AS and AtB AS (Case E-16/16)(EFTA Court 2016/16)

Posted by

 

Helen Prandy, who leads our procurement disputes practice.

 

October 20, 2017 10:15 AM | Posted by Prandy, Helen | Permalink

Two things which make claims for breach of the Public Contracts Regulations so daunting for unsuccessful bidders are the perceived inequality of arms in terms of the information available to the challenger and the Authority and the need to get on with the claim with more than usual speed.

Regular visitors to this site will know that sometimes a bidder might have as little as 10 days to make up its mind about whether to issue proceedings (compared to a 6 year time frame for breach of contract claims) and that once the button has been pushed a quirk of the Regulations and the court rules means that you only have a further 7 days to put in the detail of the claim (compared to 14 days normally).

It is not uncommon therefore to ask the Authority to extend the relevant time period and to provide relevant documents. Indeed the new Technology & Construction Court (“TCC”) guidance on public procurement claims encourages the early disclosure of documents if necessary into a confidentiality ring. But what if the Authority will not agree to extend time? It is not obliged to after all. What should a bidder do then?

If the latest decision from the TCC is anything to go by the one thing a bidder cannot do is ask the court to extend time without very good reason even where there is a perceived lack of information.

The dispute arose over a procurement for the manufacture and supply of railway sleepers. Proceedings were issued to automatically suspend contract award and in the subsequent application to lift that suspension the court was asked to consider a number of things.

In a combined application for an extension of time to serve its Particulars of Claim and for specific disclosure of documents Cemex were unsuccessful in persuading a judge that it was appropriate to leave service of Particulars until the documents had been disclosed. Whilst this may seem harsh at first sight in fact it emphasises some key points about procurement litigation which everyone should keep in mind.

Above all, the court is not going to allow procurement litigation to drag on indefinitely. The nature of the dispute and in particular its impact on a third party (the winning bidder) and often the public at large requires that there should be as little delay as possible in achieving a resolution.
Secondly the bidder must focus on what its challenge is. It is not enough simply to assert that there is insufficient information to plead a claim. Here the principal ground of complaint was an alleged ‘abnormally low’ bid but the judge felt that there was enough information already available to enable this to be set out in sufficient detail without the need to see further documents or to require more time.

Thirdly, any request for specific disclosure must be concise and focused on the actual documents needed and not a lot of other documents which might be sought perhaps in the hope of fleshing out additional claims.

And finally, the judge appears to have taken a very dim view of the bidder’s refusal to co-operate over the terms of a confidentiality ring into which the relevant documents could have been disclosed. In this case the bidder insisted that 2 people, outside the legal teams, should be included but those people were not prepared to give all the undertakings necessary to ensure the integrity of the ring.

As ever, every case turns on its own facts but it is nevertheless a worthwhile reminder that the landscape for procurement claims is a challenging one which requires a clear focus on the actual issues, an ability to act quickly and a degree of co-operation with the Authority encouraged by the TCC Guide.

Cemex UK Operations Ltd v Network Rail Infrastructure and another [2017] EWHC 2392 (TCC)

Posted by who leads our procurement disputes practice.

July 21, 2017 2:56 PM | Posted by Beresford-Jones, Jenny | Permalink

After several months of waiting, the new Technology and Construction Court (TCC) guidance note on procedures for public procurement cases has been formally launched. The Guidance forms a new "appendix H" to the general TCC Guide.

We first wrote about the new Guide in our article here back in September - there have been no material changes to the format since then, so do have a look at that article if you need to get up to speed with the changes the Guide brings and its likely impact.

If you're looking to challenge a procurement decision, do see our content hereHelen Prandy is a procurement litigation specialist, if you wish to have a preliminary discussion about your options.

You can read a copy of the new guidance on procedures for public procurement claims here.

Posted by Jenny Beresford-Jones

July 19, 2017 12:29 PM | Posted by Smith, Ruth | Permalink

The new ‘Screening for Cartels’ tool has been developed by the CMA in conjunction with Spend Network and includes a series of tests designed to help procurers identify suspicious bidder behaviour which may be indicative of an illegal cartel.

A cartel will exist where bidders act together to fix their approach to bidding for contracts by, for example, fixing the prices each will bid, sharing information, agreeing not to bid or by making a poor quality or overpriced bid.

Using a series of algorithms and the data from a tender, the tool tests for suspicious signs in three main areas, any or all of which may be suggestive of bid rigging:

  • number and pattern of bidders;
  • pricing; and
  • document origin (including text and ‘typo’ similarities) and low endeavour submissions.

Whilst the tool does not prove the existence of a cartel, where it does identify suspicious signs procurers can consider what further steps they may need to take and/or the questions and clarifications they may need to make with bidders before proceeding to a contract award. 

The tool is being made available by the CMA free of charge.   For further details and instructions on how to request and download the tool go to:  https://www.gov.uk/government/publications/screening-for-cartels-tool-for-procurers/about-the-cartel-screening-tool#sharing-suspicious-results-with-the-cma

Posted by Ruth Smith - read more about Ruth here.

May 19, 2017 11:41 AM | Posted by Beresford-Jones, Jenny | Permalink

Think of public procurement litigation … what images come to mind for you?

Perhaps you see scenes straight out of Bleak House – gothic court rooms, scribes scurrying in the gathering gloom, dusty papers and piles of impenetrable legal tomes?

Not a bit of it. The Technology and Construction Court, which hears almost all public procurement claims, is actually housed within the Rolls Building, a temple of glass and steel in the heart of the City. And, since 25 April 2017, there should be no piles of court papers either, as courts have moved across to a compulsory, paperless system of “electronic working”. This uses an electronic filing system which allows claimants to issue claims and file documents electronically as well as pay court fees and obtain publically available documents.

At the time the commitment was made to transform to a wholly electronic system, some commentators expressed concern about what could happen should systems fail or be attacked. Of course the events of this week, which saw NHS IT systems incapacitated by the ransomware “WannaCry”, show that those fears were not without foundation.

However, the overall effect of the change should be to improve procedural efficiency for those bringing or defending public procurement claims.

if you would like a preliminary discussion about potential procurement litigation, do contact  who leads our procurement disputes practice.

Posted by Jenny Beresford-Jones

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