Recognising the potential for dispute
Being genuine experts in procurement law, we are conscious of the fact that there is an increasing trend for high value and high profile tender processes to make their way before the Courts. Our unparalleled experience in advising both public and utility sector procurers in running complex procurements, allied with our expertise in supporting private sector bidders in competing for them gives us a unique ability to identify where specific issues could lead to a dispute.
We have a very strong track record in advising both claimants and defendants in procurement challenges. We recognise though that procurement litigation can be time consuming and costly, and we have had great success in resolving contentious matters before they get to this stage, keeping both sides (and our client in particular) happy.
If that can't be achieved, then our expert lawyers are on hand to deal with all aspects of litigation strategy, which in the context of regulated procurement, can be very different from normal commercial disputes. For example, we understand the critical time pressures placed on both sides in procurement litigation and prioritise any contentious matters, particularly when the standstill period is in effect. We are also expert on the intricacies and peculiarities of procurement litigation: from early disclosure of the contemporaneous documentation, including the "Regulation 84" report, to applications to lift the "automatic suspension" and setting up confidentiality rings. We can advise on the best tactics to use in what is often a highly tactical environment.
Members of our team have previously been involved in the some of the highest profile cases in this area, including:
- Acting for MLS in their successful procurement challenge against the Ministry of Defence relating to the procurement of a £385 million port agency contract. MLS was the MOD's incumbent provider, but lost out in a re-tender, despite submitting the lowest priced and highest quality submission. This was a rare example of a procurement claim progressing all the way to trial, and an even rarer case brought under the Defence and Security Public Contracts Regulations 2011, which govern the procurement of sensitive military contracts (MLS (Overseas) Ltd v Secretary of State for Defence  EWHC 3389).
- Advising a global telecommunications company in a multi-million pound procurement claim against a UK water company relating to a contract for IT services. This claim was brought under the Utilities Contracts Regulations. Ultimately, this case settled in our client's favour.
- Acting for five global consultancy firms in claims against a Central Government purchasing body regarding the cancellation of a high value national framework agreement.
- Representing a large London borough council in the defence of a procurement challenge relating to a c.£150m roads maintenance contract.
- Acting for a leading European tram operator in a challenge under the Utilities Contracts Regulations relating to the operation of one of the UK's largest tram networks. Our client was the incumbent provider of the service, and the claim settled providing favourable exit terms for the client from the existing contract.
- Acting for a UK airport operator on the defence of a procurement challenge relating to a multi-million contract for Air Traffic Control services.
- Acting for Covanta Energy on its successful interim injunction application to prevent a £1.3bn waste contract from being signed by Merseyside Waste Disposal Authority (Covanta Energy Ltd v Merseyside Waste Disposal Authority  EWHC 2922).
- Acting for a NHS Trust in defending a procurement challenge in relation to a mini-competition conducted via a framework. We assisted the client in resolving the dispute before the matter became contentious.
Bird & Bird have an international team of specialist procurement lawyers who would be happy to assist with challenges in a wide number of jurisdictions across the globe. Get in touch with any member of our team for further details.