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

6hrs CPD

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  1. Registration and coffee

  2. Chairman's Introduction

    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".

  3. Panellists

    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

  4. Evaluative criteria

    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".

  5. Serious breach

    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).

  6. Morning Coffee

  7. Contract extensions

    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".

  8. 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.

  9. Lunch

  10. Modifications

    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.

  11. Confidentiality

    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 [2017] litigation on the handling of confidential procurement information.

  12. Afternoon Tea

  13. ​Performance

    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".

  14. ​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

  15. Close of Conference

** All speaker quotes are taken from Chambers Directory, Who's Who Legal and Legal 500