Registration and coffee
Public Procurement: Shaping the Rules into Solution-Focused Answers for Clients
Fri 17 November 2017
The Landmark Hotel 222 Marylebone Rd London NW1 6JQ
Answers to 13 Thorny Questions: Directly from 12 of Europe's Most Experienced QCs, Solicitors, Judges and Policy Makers
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Public Procurement: Shaping the rules into solution-focused advice for clients
Chaired by: David Gollancz of Keating Chambers
David established and led the Treasury Solicitor's Public Procurement Team. He brings a huge number of the most closely watched cases to the table. He "just doesn't stop until he's found you a solution or an argument".
Mary Dunne, a Specialist Adviser to the EC on Procurement
Dr Totis Kotsonis, a Specialist Adviser to the EC on Procurement
Paulo Magina, Head of the OECD's Public Procurement Unit
When is the court willing to examine more subjective or evaluative tender criteria (because of lack of transparency around how such criteria are scored), and substitute its own view for that of authority?
Answered by: Ciara Kennedy-Loest of Hogan Lovells
Ciara is a former "Global Procurement Lawyer of the Year". She acted for ALSTOM in the challenge to Eurostar's contract award for Channel Tunnel rolling stock. She is "preeminent" and "absolutely first class".
What is meant by a "serious breach", in the context of damages as a remedy only being available when there is a “serious breach” of the procurement regulations, EnergySolutions v NDA?
Answered by: Sarah Hannaford QC
Sarah is "celebrated for her skill in procurement law". She defended the Legal Aid Agency against challenges from 100 law firms over contracts for work (one of the Lawyer magazine's most significant cases of 2016).
What is the secret to arguing that Regulation 72 allows you to extend a contract term (with reference to the Commission's referral of Italy to the ECJ over its motorway concession)?
Answered by: Deok Joo Rhee QC
Deok Joo's expertise is in novel procurement issues which intersect with wider EU law. She advised on the lawfulness of clawing back ERDF grants because of alleged breaches of Regs. "Her knowledge is encyclopaedic".
Conflict of interest
How can authorities mitigate against actual, potential, unwitting or perceived conflicts of interest in the tender process, with reference to the recent spate of EU cases and the HS2/CH2M/Mace dispute 2017?
Answered by: Jonathan Davey of Addleshaw Goddard
Jonathan is advising the Danish government on the procurement of an undersea road and rail tunnel between Denmark and Germany. He is co-editor of "Government Procurement Review" and Founder of the PLA.
Drawing on grey area examples, what constitutes a “clear, precise and unequivocal review clause” so as to give you maximum flexibility for the purposes of modifying the contract spec?
Answered by: Cyrus Mehta of CMS
Cyrus heads the competition and procurement team at CMS, which acts for a range of public and private sector clients including Post Office, Scottish Water and Department of Transport. He is "smart and savvy and seems to know everything". He is regularly published or quoted by The Times, Bloomberg, The Lawyer, Legal Week.
How are challengers benefiting from the shift in balance between (1) transparency, (2) access to remedies and (3) confidentiality in the context of the Bombardier v Merseytravel case?
Answered by: Jason Coppel QC
Jason is a “problem solver – practical, positive and with ground-breaking knowledge”. He acted in the Bombardier Transport Ltd v Merseytravel  litigation on the handling of confidential procurement information.
What amounts to an objective assessment of a bidder's past performance, when the bidder is either (1) a start-up, (2) a phoenix company or (3) new to the market?
How do you deal with criteria such as references, experience, past financial standing etc.?
Answered by: Michael Bowsher QC
Michael is "an undisputed star” - "the UK's most prominent procurement silk". He represented Associated British Ports in its challenge of MOD's contract to run Marchwood Military Port. He "is unmatched in his knowledge".
View from the bench
What is the direction of travel for Procurement cases in the UK, including the Procurement Protocol for litigating cases in the TCC?
Answered by: The Hon. Mrs Justice O'Farrell
Close of Conference
** All speaker quotes are taken from Chambers Directory, Who's Who Legal and Legal 500