With ever more outsourcing by public authorities and increasing competition for that work amongst private organisations, public procurement is an integral, but often not fully understood, part of the modern economy. Large businesses have an interest in procurement processes operating fairly, but so do charities, NGOs, social enterprises, unions and trade associations.
Public procurement processes are fast-moving and time limits for challenges to be brought are some of the tightest in the legal system. For actual or prospective bidders, it is essential to take advice and act as soon as there are any concerns about the fairness or legality of a tendering process, whether or not the procurement is formally being conducted under the relevant regulations.
Concerns may only arise after the contract is awarded, for example, if the public authority has used different criteria than those originally published, has failed to take relevant information properly into account or discriminated against a particular type of organisation in a scoring system. Significant problems can also arise during the procurement process itself, including substantive issues such as changes in scope as to what is being procured, and procedural matters such as insufficient time to respond at particular stages. These will not necessarily lead to the exclusion of bidders, and it can therefore be tempting to await the ultimate outcome. However, this seriously risks leaving it too late for any meaningful action.
Taking specialist legal advice throughout allows bidders to monitor legality and to raise any concerns at an early stage, avoiding unfairness later on and, at the worst, protracted litigation.
It may also be possible for those not directly participating, but with an interest in the process, such as trade associations and unions, to monitor and ensure a fair process. A specialist procurement solicitor can help identify any risks and ensure they are brought to the attention of the public authority as soon as possible.
Similarly, for public authorities, legal advice can ensure that the process is done right from the outset. Careful planning can avoid costly procurement challenges.
Where things go wrong and cannot be resolved, an expert solicitor can ensure the necessary steps are taken to protect bidders’ rights or defend the position of public authorities, seeking resolution through appropriate settlement options or, if that is not possible, through the courts.
The time frame for legal action is short – just 30 days. Taking early advice does not mean that court proceedings have to be started, but it can preserve that opportunity if it becomes the only option.
Bindmans provide a cost-effective package of specialist legal services tailored to clients’ needs. We work regularly in collaboration with in-house legal services, adding value in identifying and correcting potential flaws. We can also offer specialist training so issues can be identified early and appropriate processes put in place.
Our previous work has achieved positive, cost-effective outcomes for clients. We have particular experience in legal and NHS services procurement but have handled a wide range of other cases. Examples include:
- Leading the legal team representing over 70 legal aid law firms in the largest procurement litigation of its kind, challenging the results of the ‘two-tier’ competitive tender for criminal legal aid services. The Secretary of State abandoned this controversial policy during the litigation
- Advising a property development consortium in respect of a potential challenge to a procurement exercise for a £150 million town hall regeneration project
- Acting for a social enterprise providing property management services challenging their failure to be awarded a number of contracts for which they were the incumbent supplier
- Successfully acting for a leading professor of physical chemistry in an appeal against the European Commission’s refusal to award €5 million in funding to a project he was leading
- Successfully challenging the Legal Aid Agency’s rejection of a bid to undertake legal aid work
- Obtaining a contract for a bidder that had initially not been allowed to participate in the tender for a framework agreement due to a late submission
- Successfully obtaining the rewinding of a healthcare procurement on behalf of a GP consortium not awarded the contract through combined judicial review and procurement proceedings
- Successfully obtaining the withdrawal of a Government policy effectively allowing the ‘blacklisting’ of organisations
- Successfully challenging the Legal Services Commission’s procurement processes for mental health and public law on behalf of four law firms in Public Interest Lawyers and the LSC  EWHC 3277 (Admin), resulting in the LSC undertaking a proper verification exercise and consultation and impact assessments under s.49A Disability Discrimination Act 1995
- Advising a major non-pharmaceutical health goods and service provider and its representative trade association on issues relating to public procurement exercises in the healthcare sector
- Obtaining reinstatement in a long-running procurement process for a bidder wrongfully excluded before the final stage on the basis of previously unpublished criteria
- Successful challenges to unfair government procurement processes for a major advertising agency and an apprenticeship provider
Our areas of expertise include:
Public procurement is a complex, but important area of law. Bindmans has experience across a wide range of industries, including advertising, health, design, ICT and transport. We ensure that public authorities comply with their legal obligations, alternative solutions to legal challenges are sought in cases of non-compliance and, where legal action is unavoidable, such action is pursued, or defended, vigorously.
Regulatory and advising standards compliance
Bindmans can assist in respect of a wide range of regulatory issues, including day-to-day compliance, best practice in areas such as human rights and equality, engagement with regulators and regulatory enforcement. We can also advise on engagement strategies in respect of regulatory policy and law reform, including assisting clients with informal and formal consultation.
Demonstrating social value
Bindmans can work with charities and social enterprises to communicate the social value they can provide over and above financial value, and challenge decisions where that social value is not adequately taken into account.
Licensing advice and litigation
A licence to provide particular services can often be essential to the running of a successful business. When a licence is refused or taken away, or an unlawful policy prevents services or products from being offered to the public, Bindmans will work with you to engage the licensor on the issue and bring a challenge where necessary.
Inspections, audits and funding
Public authority inspectors and auditors wield considerable power. A poor report following an inspection or a cut in funding can have a dramatic effect on organisations with contracts to deliver public services, such as legal aid solicitors, care sector charities education or training providers. Bindmans can assist in challenging those decisions where they have been made unfairly or otherwise unlawfully.
What others say
Represents claimants in strategic litigation challenging legislation and government policy, regularly reaching the Court of Appeal and Supreme Court. Clients include individuals affected by state decisions as well as NGOs. Areas of expertise include access to welfare, access to justice and access to healthcare. Also increasingly active on regulatory and commercial public law challenges.Chambers and Partners 2020 – Administrative and Public Law: Traditional Claimant
We feel like we are in very safe hands. It is a very strong team. It feels like they are on our side but not ‘yes’ men or women. They are not afraid to challenge us and help us strengthen our position. A dream team.Chambers and Partners 2018 – Administrative and Public Law: Traditional Claimant
One of the main strengths is Bindmans’ unrivalled reputation in the field of public law. Instructing Bindmans was in itself a demonstration that we were serious about the subject matter of the claim.Chambers and Partners 2018 – Administrative and Public Law: Traditional Claimant
[The team] represents claimants in strategic litigation challenging legislation and government policy, regularly reaching the Court of Appeal and Supreme Court. Clients include individuals affected by state decisions as well as NGOs. Areas of expertise include access to welfare, access to justice and access to healthcare.Chambers and Partners 2017 – Administrative and Public Law: Traditional Claimant
It is partly the calibre of the people they have in their public law team and partly their commitment and attention to detail.Chambers and Partners 2017 – Administrative and Public Law: Traditional Claimant
I was impressed. They always kept me involved and updated throughout the process.Chambers and Partners 2017 – Administrative and Public Law: Traditional Claimant
Jamie Potter brings a commercial perspective to Bindmans LLP’s public law offering. He is singled out for his ‘extremely good knowledge of the field. He is extremely diligent, committed to clients, very responsible and a joy to work with.’ Another client praises his ‘sound, straightforward advice, that is easy for me to understand. Also, no matter what his workload, I feel that he makes time for me. He always treats us like a priority’.Chambers and Partners 2017 – Administrative and Public Law
Established administrative and public law team advising claimants in cases ranging from access to justice to animal welfare. Leads the way on challenges to public policy and law, including right to die and legal aid reform. Also handles public contracting issues and public law disputes brought on the ground of equality.Chambers and Partners 2016 – Administrative and Public Law
Jamie Potter is extraordinarily knowledgeable about how to apply public law processes to business.Chambers and Partners 2016 – Administrative and Public Law
The ‘stellar’ practice at Bindmans LLP is lauded for its ‘cutting-edge, top-class claimant work’. Clients praise its ‘fearless litigators’ and ‘unmatched depth of knowledge and experience’.Legal 500 2014 – Administrative and Public Law
The ‘professional and committed’ Bindmans LLP has expanded its profile in commercial judicial review work with the recruitment of former Hogan Lovells International LLP associate Jamie Potter, who was promoted to partner in 2015. Clients comment that Potter ‘has really made his mark’. The firm continues to handle the full remit of administrative and public law advice for traditional claimants. Practice co-heads John Halford and Saimo Chahal QC (Hon) are standout practitioners…Legal 500 2014 – Administrative and Public Law