Procurement and subsidies

Our nationwide procurement and subsidies team supports organisations engaged in commercial arrangements which have a regulated, public sector dimension. This includes public authorities and utilities awarding contracts under the public procurement rules and suppliers bidding to win such contracts. We are also uniquely positioned to advise on funding arrangements, such as grant agreements, which are subject to UK subsidy control.

Advising contracting authorities on regulated procurement

Navigating this complex area of law is challenging. In addition to the relevant legislation, the regime is underpinned by a significant body of case law, guidance and practice. Our team can assist contracting authorities (public sector and utilities) with everything from the design and execution of large-scale tender processes, direct awards, exemptions, and contract management, as well as bigger picture issues such as the preparation of organisational procurement policies and training of evaluators.

Our team members have advised on everything from multi-billion pound, nationally-significant projects to the delivery of vital public services at local level. This experience spans almost every sector including infrastructure, construction, social housing and regeneration, outsourcing, energy, healthcare, transport, technology and innovation, education, defence and charities.

Recognising the unique challenges and opportunities faced by every organisation we support, our advice is practical and solutions-focused. We work to ensure that the commercial objectives of a procurement are achieved, while remaining fully compliant with procurement law.

Advising suppliers to the public sector

For suppliers to the public sector, the need for procurement law support can often arise at the point of an unsuccessful bid when there is a need to examine if the evaluation was fair and, if not, to consider bringing a challenge against the award decision. However, by supporting public sector suppliers both before and during a tender process, the need for costly litigation can be avoided in most cases.

We can help with everything from training your bid teams on the relevant rules and, during a live tender process, we provide bid support with the aim of ensuring that the process is carried out in full compliance with the relevant rules and maximising your chances of success. More generally, we provide support on matters such as exclusion (debarment) from procurement and, with the increased regulatory focus on contract management issues, we can help to navigate the hurdles that arise when, for example, modifying and extending existing contracts or dealing with performance assessments.

Procurement disputes

Being subject to short timetables, when procurement disputes do arise it is critically important to have ready access to an experienced and responsive legal team. Our contentious procurement lawyers have acted successfully on behalf of parties both bringing and defending procurement challenges, including in several high-profile cases which have established important new principles of procurement law. We also have an exceptional record of achieving our clients’ objectives without having to resort to court proceedings.

For further information, please visit our dedicated contentious procurement page.

Subsidy control (state aid)

Subsidies given by public authorities in the form of grants, loans, guarantees and other kinds of financial assistance can be caught by the subsidy control regime. Given the risk of subsidy control litigation and complaints, which could result in subsidies having to be repaid (with interest), it is essential to establish that any such funding is legally compliant.

We can advise on all elements of the UK subsidy control regime. This includes support for grant funding applications, contributing to subsidy control assessments of compliance, and making referrals to the Subsidy Advice Unit. Through our established network of contacts with regulators and across central government, we have unique strengths in this area, particularly in relation to matters which have both procurement and subsidy dimensions.

How our procurement and subsidy lawyers can help

Our multidisciplinary team can advise you on all aspects of procurement and subsidy control, including:

• Designing legally compliant competitive tendering procedures.
• Transparency requirements and reviewing procurement notices.
• Preliminary market engagement.
• Advice on selection issues, including exclusion (debarment) of bidders.
• Implementing social value requirements.
• Conflict of interest issues, including statutory conflict assessments.
• Drafting and responding to clarification questions and other correspondence.
• Setting up dynamic markets and framework agreements (including call-offs).
• Contract management, including modification and termination of contracts and performance assessments.
• Joint ventures, bid consortia and sub-contracting arrangements.
• Joint and centralised procurement and public sector ‘in-house’ arrangements.
• Exemptions from competitive procurement, including making direct awards.
• The land acquisition exemption and development agreements.
• Drafting and reviewing organisational procurement policies.
• Challenging and defending public procurement contract awards.
• International procurement issues under the Government Procurement Agreement, trade agreements and the EU Foreign Subsidies Regulations.
• Legal opinions on the definition of a ‘subsidy’.
• Advice on the exemptions from subsidy control compliance, including minimal financial assistance.
• Support with grant funding applications.
• Assistance in preparing subsidy control assessments of compliance against the subsidy control principles and energy and environmental principles.
• Support with Subsidy Advice Unit referrals, including at pre-referral stage.
• Setting up schemes and other complex arrangements, such as multi-public authority funding.
• Setting up and using streamlined routes.
• The cumulation rules and valuation issues.
• The application of the Windsor Framework to subsidy control.
• Subsidy control disputes, including appeals to the Competition Appeals Tribunal and judicial review.

Examples of our team members’ experience

• Advising an organisation subject to both the procurement and utility procurement rules on its £1 billion framework agreement for provision of an energy provider to relieve fuel poverty.
• Advising a university on its procurement of a project manager and architect in relation to the redevelopment of its campus and new teaching centre.
• Advising numerous registered providers on the procurement of their respective repairs and maintenance and gas servicing programmes, including where wholly-owned subsidiaries were used for the workforce.
• Advising numerous local authorities on their regeneration schemes, including examples of structuring projects as land deals rather than public works contracts.
• Advising a large contracting authority on its IT Towers procurement.
• Advising a transport organisation in relation to its procurement for framework agreements for joint venture developer partners to regenerate numerous sites across the capital, worth up to £3.6bn.
• Advising a local authority on the appointment of a development manager to oversee the proposed regeneration of land in London.
• Advising contracting authorities in relation to setting up and calling off from framework agreements for catering services.
• Advising a large utility on entering into directly-awarded contracts and providing advice in relation to the post-award modification of contracts.
• Advising a housing association in relation to the applicability of the Regulation 8 Public Contracts Regulations 2015 exclusions to a telephony and wi-fi contract covering over 90,000 residential units.
• Advising several housing associations and local authorities concerning funding applications to the Building Safety Fund in relation to re-cladding works for residential tower blocks and the related procurement processes.

Advising a local authority in relation to the post-award modification of a £9m contract concerning the operation of its leisure and sports facilities.

What our clients say about us

“Clarke Willmott has excellent attention to detail and is very professional.” Chambers UK, 2024

Contact a specialist procurement lawyer today

To find out how our procurement law team can support your business or project, please contact one of our lawyers directly or call 0800 652 8025.