Key Facts

Public procurement is the buying of goods, works or services by public sector bodies

When a public sector organisation wants to enter into a contract for goods, works or services, it must comply with the EU procurement rules. This enables companies across the EU (and therefore not just England) to bid for the work / sale of goods enabling EU wide competition

The framework of the EU procurement rules is intended to ensure that contracts for goods/services/works by public sector bodies are awarded fairly, transparently and without discrimination on the grounds of nationality. All 'bidders' for that work are to be treated equally

At the moment, if a public body wishes to advertise a contract, it must advertise the contact at EU level in the Official Journal of the European Union (OJEU) and follow specified procedures for selecting candidates and assessing tenders (this is known as the tendering process or the bidding process). The companies that apply for the contract are known as 'bidders'. The bidders applications are each assessed following the deadline and awarded following a specific process.

 

The OJEU requirement will be replaced once the UK leave the EU but the general process will largely stay the same. 

There are circumstances where a public sector body may not need to advertise the contract in OJEU but a procurement lawyer will be able to advise their client accordingly. 

An overlapping and related area to be considered when thinking about public procurement is the rules around 'state aid'. State aid is any advantage granted by a public authority through state resources on a selective basis to any organisation that could potentially distort competition and trade in the EU. 

What do public procurement lawyers do?

Public procurement lawyers will work with local authorities, public utilities and bidders in the procurement contract process. They will:

  • advise and proactively implement a procurement strategy 

  • advise on risk through the whole process 

  • draft relevant tendering documents such as the initial paperwork to get the contract in OJEU or the bid paperwork to apply for a contract (depends which side they are acting for) 

  • advise on legal challenges during the process 

  • ensure that the processes are all legally and regulatory compliant 

  • develop bid strategies 

  • advise on state aid law issues and funding arrangements 

  • advise and assist with complaints and proceedings by the European Commission

Public procurement is a very technical area of law! Lots of research and bespoke drafting will be required and an interest in procurement law is a must. It is a highly regulated area so keeping on top of the latest legal and regulatory updates is a large part of the role.