Latest blogs on procurement law

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.

The Court's decision was made in the long running litigation between the Nuclear Decommissioning Authority (NDA) and Energy Solutions EU Ltd (now called ATK Energy) (ATK). Although the parties had already agreed a compromised settlement they asked that the Supreme Court still hear the appeal as there were important points of principle at stake.

Not all public procurement is so high profile and mistakes will not have such wide-ranging consequences but the reasons for the failure of this procurement are an object lesson to all contracting authorities to ensure that evaluation is carried out fairly and transparently and that clear records are kept of all evaluation decisions and an appropriate audit trail established.

The Public Contracts Regulations 2015 (and their 2006 predecessors) set out a prescribed statutory framework for bidders and other economic operators in the market to challenge a breach of the procurement rules.

Fat-finger syndrome so the ever-reliable internet tells us is the 'occasional tendency of stressed traders working in fast-moving electronic financial markets to press the wrong button on their keyboard and in the process lose their employer a mint'.

The ECJ has just handed down a preliminary ruling on request of the Danish Supreme Court in Finn Frogne A/S v Rigspolitiet ved Center for Beredskabskommunikation Case C-549/14.

A High Court judge has issued a warning to contracting authorities who might be tempted to minimise the amount of paperwork they keep particularly where they fear that a high profile procurement exercise might be challenged.

In a public procurement context it is very easy to see how damages for the failure to win a substantial public contract could be in excess of £200,000. Unlike most litigants however a Claimant in a public procurement case only has a maximum of 30 days (and perhaps as little as 10 where a standstill period is not extended) in which to decide whether to bring a claim and that frequently means that Claimants are immediately faced with the prospect of paying out a substantial and irrecoverable court fee without having any real idea of the strength of their case.

How does a Court assess adequacy of damages in a procurement case, when hearing an application to lift an automatic suspension involving two not-for-profit NHS organisations?