19 December 2016

Firstly – to make it clear: public procurement law will not disappear with Brexit. Most likely it will remain substantially the same as it currently is, with minor adjustments for policy reasons possible in the longer term.

For 2017 and beyond we will continue to have a tight and highly regulated public procurement regime for all government, local government and public sector buyers (as well as some utilities). There have however just been a number of changes to those laws and they are still bedding in. There is also an active judiciary which is prepared to scrutinise the detail of how bidders are selected and scored.

As bidders and authorities get more familiar with the procurement rules and how to use them, and a large volume of large government procurement projects enter or exit the procurement phase in 2017, it is likely that the number of challenges will continue to rise. Authorities and evaluators will continue to up their game and bidders will be more alive to enforcing compliance.

The 2015/16 Public Contracts Regulations and Utilities Contracts Regulations have now been in force long enough for procurement processes run under them to reach award. That should mean that the challenges which arise in 2017 will increasingly be based on those new rules, providing greater clarity in matters such as material change and conflicts of interest.

In addition, the Concession Contracts Regulations are now in place and bring with them the enhanced remedies which apply elsewhere in public procurement. Awards of the ‘right to exploit’ public property are consequently likely to come under greater scrutiny.

Procurement in the health and social care sector is likely to continue to be a hot issue in 2017. With tighter NHS budgets and the maturing of private sector contracting models we anticipate more relevant procurement by CCGs under the light touch regime and the NHS Regulations. Challenges to procurements in the health and social care sector continue to rise and after the high profile collapse of a £750m procurement in Cambridgeshire and conflicts of interest within CCGs being closely monitored, we anticipate a lively year ahead in this sector.

Overall it appears likely that Public Procurement activity in 2017 will continue at a high level and challenges will continue to arise regularly. The courts seem set to look closely at the standards Authorities are applying and the reasons for their awards.

Should you wish to discuss any aspect of this article further, please contact Chris Jackson, Ian Tucker or your usual contact from our procurement disputes specialist team.

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Chris Jackson

Chris Jackson Partner

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