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stephen@tupperslaw.co.uk
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Public Procurement

Support for compliance with the regulatory aspects of a procurement process, working with both contracting authorities and tenderers, including in relation to contract award challenges.

Carrying out procurement exercises can be complex, particularly when they are subject to the regulatory frameworks application in the UK or EU. This is especially true for regulated utilities that are subject to similar rules as public bodies regarding the conduct of their procurement.

TupperS Law works with contracting authorities to support them with the design and implementation of tendering processes, including the identification of selection and award criteria. We also advise entities going through tenders on how to engage with the process and, where they are unsuccessful, on how they might challenge the outcome of the procurement.

  • Commercial drafting: drafting of pro forma contracts used as part of the tender package.
  • Conduct of PQQ/ITT: reviewing pre-qualification questionnaires (PQQ) and contract/tender documentation accompanying the Invitation to Tender (ITT).
  • Framework Agreements: advising on the treatment of framework agreements under the rules
  • Pre-selection and award criteria: advising on pre-qualification selection and award criteria
  • Procedures: advising on the appropriate award procedure (open, restricted, competitive procedure with negotiation, competitive dialogue and innovation partnership, etc.) and implications thereof
  • Remedies: advising on remedies for non-compliance and issues of commercial risk.

Cases worked on by the TupperS Law team* to date include:

  • Bid rigging:  advice concerning the application of competition law to collusive tendering and cartel behaviour.
  • Co-branding:  compliance advice with regard to a co-branding arrangement between a governmental entity and a private sector service provider.
  • Compliance policy:  assistance with the design of a procurement rules policy for a significant UK government department.
  • Concession Agreements:  advising on concession agreements – in context of PPP/PFI – and their treatment under the rules.
  • Defence exception:  advice concerning the legitimate use of the defence/national security exception.
  • Defence procurement:  general advice concerning the EU’s defence procurement regime.
  • Dispute resolution:  resolution of a number of disputes including a major re-negotiation of a remediation contract for a contaminated electricity generation facility.
  • Drop-out:  advice concerning the consequences of withdrawal by a “preferred” tenderer.
  • Energy generation:  advice concerning the scope of the exemption decision that applies to the British energy generation sector.
  • E-Procurement:  advising on the procurement issues surrounding the creation of a B2B portal for e-procurement.
  • Extensions/Variation:  advising on extensions and variations of existing contracts and the possible need to re-tender.
  • Financial leasing:  review of the application of the public procurement rules to proposed equipment and property leaseback arrangements.
  • Gas handling facilities:  advised on the procurement procedure necessary to find an entity(s) to build and operate LNG handling facilities.
  • Joint Ventures:  advice concerning the application of public procurement rules in regard to a joint venture to build a power station.
  • Leadbitter litigation:  acted for Leadbitter in litigation before the UK High Court regarding a challenge to the award of a large construction framework arrangement in South West England.
  • Legislation:  advising various clients on the amendments to the rules, both the “classic” public sector Directives the Utilities Directive and the Concession Contracts Directive (as published in March 2014), in particular with reference to the “competitive procedure with negotiation” and “innovation partnership” award procedures.
  • Mini tenders:  assistance with call-off/mini tenders under Framework Arrangements.
  • OJEU Notices:  drafting and reviewing OJEU notices.
  • Partnering: assistance provided to a US-based consultancy regarding how to access contracts let by EU-based funding bodies.
  • Reasons for award: advice regarding what constitutes adequate reasoning for the award of a contract as communicated to unsuccessful tenderers.
  • Revoked tenders: advice to successful tenderer where the contracting authority decided to revoke and restart a tender procedure.
  • The 80/20 Rule:  advising on the application of the so-called “80/20 rule” in utilities procurement in the context of unbundling and outsourcing.
  • Use of environmental “green” pre-selection and award criteria:  advising on the use of environmental and social criteria both at pre-selection and award stage.

*Some of these are matters worked on by the team prior to joining TupperS Law

Contact us

If you have any questions please contact us and a member of the team will be happy to help.

TupperS Law

22 Disraeli Road, London W5 5HP

stephen@tupperslaw.co.uk

0203 637 4660