Public procurement regulations govern every contract under which a public authority or other State entity is procuring construction works or supplies of goods or services, provided the likely value of the contract is above one of a range of financial thresholds.
Under the rules a contracting authority which wants to procure construction works or the supply or goods, or wants to buy in services must follow strictly one of the specified tender procedures – the open procedure, restricted procedure, competitive dialogue procedure, competitive procedure with negotiation, or an innovation partnership. Contracts granting concessions, for example, to build a toll road in exchange for a share of revenues, are subject to a special regime.
Suppliers who miss out on a contract because of defects in how the procurement has been conducted can go to court to stop the tender process and seek damages for wasted tender costs or even lost profits. In some circumstances the contract can be declared ineffective.
DWF is one of the leading advisers on public procurement issues. We act for a wide range of clients, including many contracting authorities and key suppliers to the public sector. We have the experience to understand how to apply the detailed technical rules in practice. We help public sector clients to design effective and compliant tender procedures.
When things go wrong we advise on robust defence strategies. And when acting for a supplier, we can use our detailed knowledge of best practice in tender procedures to ensure that a supplier achieves the best result, whether it is influencing the contracting authority to act fairly or if necessary challenging a process in court.
On 6 March 2018, the Court of Justice of the European Union ("CJEU") rendered an important judgement in case C-284/16, Slovak Republic v. Achmea. The CJEU declared invalid the investor-State dispute settlement ("ISDS") arbitration clause in the bilateral investment treaty between the Netherlands and Slovakia ("intra-EU BIT").