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On 1st April 2020 the Commission issued practical guidance in relation to how public bodies can use the provisions of the EU public procurement rules to source goods, services and works rapidly in response to the emergency situation caused by the Coronavirus outbreak. The guidance emphasises that “ the EU public procurement legislation already provides public buyers in the EU with the ability to purchase protective equipment, medicines and ventilators quickly if needed in urgent situations. The current coronavirus crisis –Read More–

Increasingly the government is looking to the private sector for innovate ideas in the delivery of public infrastructure. Notably the Department for Transport’s (DfT) “Rail Market Led Proposals – Call for Ideas” paper published in March of this year calls for ideas to develop projects to upgrade and transform rail infrastructure and operation but are they compatible with EU procurement law and how is valuable IPR protected? Market Led Proposals “Market Led Proposals”, such as those being requested by the Department –Read More–

The Supreme Court decided last year in Nuclear Decommissioning Agency v Energy Solutions EU Ltd [2017] UKSC 34 (“the NDA case”) that a claimant no longer had an automatic right to damages for a breach of the public procurement rules. Instead the Supreme Court imposed a “sufficiently serious” requirement for a breach to entitle a party to damages using the Court of Justice of the European Union ruling in Francovitch (Case C-479/93 Francovitch (1995)) as a justification for its stance. –Read More–

A recent public procurement decision of the European Free Trade Association (EFTA) Court highlights the possibility that aggrieved suppliers in public procurement cases in the UK run the risk of losing their future rights to damages in post-Brexit Britain unless they are specifically retained under the European Union (Withdrawal) Bill. One of the UK Government’s redlines in the Brexit negotiations was not being subject to the rulings of the Court of Justice of the European Union (CJEU). However the EU –Read More–

The case itself is a judgement of 5 October 2017, following a request for a preliminary ruling from a regional court in Lithuania to the ECJ. The question submitted was essentially should a private company established by the Lithuanian state railway company, which independently carried out business in the private sector (in this case that business being providing rolling stock repair services to the state railway company) be considered a contracting authority? The ECJ was also asked this question on –Read More–

Those aficionados of the silver screen will remember comedians Laurel and Hardy and in particular their catchphrase ‘Well here’s another nice mess you’ve gotten me into’. Well that seems to be an appropriate ‘epitaph’ for the challenges and issues that UK procurement legislation faces after Brexit. Most of the complex laws and regulations around the tendering of major public contracts derive from EU law. Removing the supremacy of EU law and the binding nature of the Court of Justice of –Read More–

On 19 October 2016, the Scottish Court of Session in the Renfrewshire Council case [ 2016 ] CSOH 150 CA 78/16 (Dem-Master Demolition Ltd V Renfrewshire Council as lead authority for Scotland Excel) confirmed that a contracting authority has no duty to allow a tendering party to correct errors after a tender deadline. The Court considered that equal treatment should take priority when handling tender errors, in accordance with obligations set out in the Public Contracts (Scotland) Regulations 2012 (2012/88). –Read More–

On 20th June 2016, the UK’s Competition and Markets Authority (“CMA”) released an open-letter offering advice to public authorities to help spot anti-competitive activity during a tender process. This is known as bid-rigging. This open letter is primarily designed to help purchasers detect bid-rigging and to avoid becoming a victim of it. The most common types of bid-rigging are: bid rotation, where companies agree to take turns in having an attractive bid, ensuring they all have an agreed share of –Read More–

On 17 February 2016, the Cabinet Office published a Procurement Policy Note (“PPN”) which seeks to prevent public authorities from participating in boycotts and other political decisions which affect decision making and public spending. Some public authorities, namely local government councils, including the City Councils of Leicester, Birmingham, Swansea and Gwynedd, have been imposing such boycotts, commonly on grounds of the alleged Israeli occupation of claimed Palestinian territory. These boycotts are likely to be unlawful interventions under the EU public –Read More–

On 9 December 2015, the Crown Commercial Service published important statutory guidance on the new subcontracting provisions under the Public Contracts Regulations 2015 (‘the PCRs’). The guidance is important as the sub-contracting rules found under Regulation 113 of the PCRs impose obligations on main contractors, in regard to their chosen sub-contractors. The guidance explores the new obligations being imposed on contracting authorities, including: requiring the main contractor to provide basic details on their immediate subcontractors (Subcontracting Regulation 71.(3)) including their –Read More–

On the 25 November 2015, the European Commission published new thresholds, over which, the EU public procurement rules on advertising and the award of relevant contracts apply to a contractor sought by the public sector purchasers. The thresholds are amended every two years, this latest amendment will affect all three of the main procurement Directives, Directive 2014/23 (Concessions Directive), Directive 2014/24 (Public Sector Directive) and Directive 2014/25 (Utilities Directive). Crucially, the thresholds have been revised slightly upwards, meaning no seismic change –Read More–

On 11 June 2015, the French Competition Authority (“FCA”) handed TDF, a formerly state-owned company, now completely privatized, a €5.66 million fine for two anti-competitive practices which took place on the Eiffel Tower site. TDF was already well known to the FCA, as its predecessor, the Conseil de la concurrence, had fined it in 1999 for an abuse of a dominant position on the market of installation and maintenance of broadcasting equipment. In 2006 the town hall of Paris launched –Read More–

On 1 July 2015, the Supreme Court rejected an appeal by Edenred (UK Group) Limited against HM Treasury regarding proposed changes to an existing public contract with competitor Atos, to allow the inclusion within the scope of Atos’s contract the new government tax free childcare scheme. Edenred claimed that failure to advertise this procurement was a breach of the public procurement rules. Although the contract had originally been awarded under the Public Contracts Regulations 2006, the Supreme Court applied the –Read More–

On the 24th of June 2015, the Danish Competition Council (DCC) held that a consortium (between LKF and Eurostar) which won a road marking bid was anti-competitive due to the fact that the consortium members could have made individual bids in a tender. The case has implications for any companies considering consortia bids in Europe. The case started in March 2014 when the DCC received a complaint by one of LKF and Eurostar’s competitors that their cooperation in a public –Read More–

On 29 April 2015, the English High Court in an usual move agreed to applications made by the claimant (an unsuccessful bidder) for early specific disclosure of certain tender documentation by the defendant contracting authority in a public procurement dispute. The facts of this case were that the Environment Agency (EA) conducted a new procurement procedure for a temporary flood barrier system in 2014. Geodesign Barriers Limited (GBL), who was the incumbent supplier, submitted a tender. However the EA informed –Read More–

On 30 March 2015, four new sets of guidelines were released by the UK Government to assist parties involved in tenders governed by the Public Contracts Regulations 2015. These are: • Guidance on amendments to contracts during their term. • Guidance on awarding contracts. • Dynamic Purchasing System guidance. • Guidance on the standstill period. Of the four, the guidance on amendments to contracts during their term may prove especially beneficial for both public authorities and contractors. We often encounter –Read More–

On 26 February 2015, the Public Contracts Regulations (“PCRs”) 2015 will come into force. These regulations implement the provisions of the new Public Sector Directive No. 2014/14 into English law. Separate regulations will be introduced for Scotland. We reported this time last year how the EU had adopted new Directives on public procurement in this post. The PCRs replace the Public Contract Regulations 2006 as amended and will govern all public sector procurements commenced after the commencement date. These represent –Read More–

The classification of software has long been a thorny issue for software companies who employ agents to sell their programs. The importance of the classification is that it may determine whether the Commercial Agents Regulations 1993 apply in the UK. These regulations are based on the EU Commercial Agents Directive 86/653/EC. The Regulations could significantly increase the costs of selling through agents by dictating mandatory termination payments for agents. The industry has long clung to dated case law which erred –Read More–

A recent High Court case has provided guidance on the circumstances in which a contracting authority can award further contracts to a contractor without the need to re-advertise the procurement under the EU procurement rules. It will help shape the scope contracting authorities have in arguing that the addition of further work does not constitute a material variation to the original procurement. Although the new public procurement regulations (due to come into force in the UK later this year) will –Read More–

In a leading judgment the High Court has refused to lift the automatic suspension of a contested procurement for air traffic control services carried out by Gatwick Airport Limited on the grounds that the claimant, NATS (Services) Limited would suffer a serious harm to their reputation, goodwill and business if it lost the contract and it was only appropriate in the circumstances that their allegations against the contracting authority should be fully tested at trial. This decision is surprising and –Read More–