Strategic advice in contentious public procurement

Caroline-PruntyCaroline Prunty, Head of Commercial Litigation at MMW is a member of the Procurement Lawyers Association and her ‘very competent’ group have been noted for their expertise in procurement by a number of legal directories.

The team at MMW represent some of the largest companies in Northern Ireland. Caroline Prunty, and her “very competent” group have been noted for their expertise in procurement by a number of legal directories including Chambers and Legal 500. MMW’s highly skilled team has a wealth of experience in litigating major procurement disputes and advising on large scale projects.

MMW has had a busy year in the procurement sphere. 2016 has seen further growth in advisory work within private sector tenderers. This reflects the fact that companies are finding it more and more difficult to navigate the complexities of tendering for public contracts. Most commonly, MMW receive complaints from clients about rival tenderers in public procurement processes.

MMW have identified a trend of cases whereby rival tenderers have been seeking to outmanoeuvre procurement documents in a manner which allows them to promote and encourage an enhanced interpretation of their own experience or qualifications. This can lead to some tenderers achieving a winning bid at the expense of other more suitable tenderers.

Due to strict timeframes imposed by the EU Directives and the Public Contracts Regulations 2015, Contracting Authorities can find themselves in catch 22 situations when they simply do not have capacity to carry out the full due diligence required in order to obtain evidence or references confirming tenderers qualifications. An additional concern for Contracting Authorities is commercial sustainability of the contract. There is an onus on Contracting Authorities to ensure bids are ‘genuine’ or ‘serious’ as per the case of Amey LG Limited -v- the Scottish Ministers [2012]. However, given the speedy pace at which procurements take place, tenderers who price low can occasionally slip through the net.

The less due diligence, the more chance there is of a tenderer successfully overstating its bid or pricing low. Sometimes, the tenderer on the losing end of this shall instruct solicitors to notify the Contracting Authority that it intends to submit a formal challenge in the High Court. That is unless the Contracting Authority does not agree to properly carry out further due diligence on the winning tenderer. Sometimes the Contracting Authority will fight the challenge, on other occasions it will abandon the process and start again.

In a recent matter in which MMW were involved, it was found that continuation with the tender process would have inevitably resulted in litigation in one form or another. Subsequent to correspondence from MMW who had reviewed the tender documents, the Contracting Authority decided to abandon the tender. It is essential that if you are tendering for projects and you do not believe that a competitor tenderer is capable of meeting the basic requirements in the tender documents, that you seek legal advice at the earliest opportunity. We can engage with the Contracting Authority to deal with all issues that arise and obviate the need to engage in lengthy and expensive litigation.

MMW are a regional leader in this field. If you need advice on any procurement issues, please contact Caroline Prunty on Caroline.Prunty@mmwlegal.com or call them today on 02890200050.

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