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76


Legal Focus


JUNE 2012


Public Procurement UK


Procurement is vitally important to businesses, especially in times of economic turmoil. In response to the difficulties European companies face trying to win public contracts overseas, the European Commission has said that the EU could block non-EU firms from bidding for government projects. To find out more about the legal issues which surround public procurement, Lawyer Monthly speaks to Michael Bowsher QC from Monckton Chambers in London.


M


ichael began: “Procurement law is one of the key areas of practice for Monckton Chambers. Monckton has a long history as one of the leading sets of chambers


dealing with EU law matters and we have been at the forefront of developing this area of work in the UK as part of our broader practice based in EU, public, competition and commercial law.


“My procurement practice is based on litigation, and therefore on challenges. Nonetheless I also advise on matters such as the planning of complex procurements. I advise clients on how best to respond to situations which arise during the tender process. I first became involved in procurement law when working in Brussels in the early nineties, but since returning to the Bar I have been in a very large proportion of the headline cases: from the first major damages claim - a claim against the House of Commons - up to the recent battles by my client, Eurostar, to defend its decision to buy new trains. I am also involved in commercial disputes regarding thedelivery of large public contracts.”


Michael continued: “I have an additional perspective on public procurement as I have been Co-Chair of the ICC Public Procurement Task Force since 2007. The Task Force works with businesses with interests in this field. We engage with international bodies such as the UN, WTO and EU to improve procurement law and standards. We are particularly concerned to resist pressures to create trade barriers in public procurement markets. The prospect of China opening up part of its market is a promising development, as is the recent adoption by a number of key industrialised countries of an updated WTO agreement on government procurement. More worrying is the growing rhetoric calling for new protectionist barriers. The


EU Commission has recently made a proposal for a new legislative instrument which may become a tool of protectionism in the field and we are watching this very closely, looking in the first instance to gather information from business as to how this may affect trade and growth.


“Procurement by public bodies and utilities is critical to the UK economy. As many public functions have been outsourced, or subjected to new arrangements over the last few years, the field of application of procurement law has greatly increased. Procurement law was expanded to cover the defence and security sectors last year and there is now no significant part of the public sector which is unaffected by this regime. Changes to the NHS are already bringing forward a fresh wave of work in the health sector.


“Procurement law was never a traditional part of the law of any part of the United Kingdom. It is grafted in from the EU and remains a largely private law regime enforcing largely administrative standards. Much of the law retains continental characteristics. The legislation has often been seen here as rather confusing because, despite its detail, the much of its main content comes from general principles of EU law derived from the case law of the European courts.


“Some complain of a substantial increase in the number of challenges to procurements brought before the UK courts. However, the number of cases is still small in comparison with other countries, in some of which there are specialised tribunals and claims are a routine part of any public procurement. Some in the EU see this relative lack of litigation in the UK as evidence that the procurement system is not working properly here. There may, however, be more


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