Our procurement team has extensive experience advising across all aspects of public procurement, from structuring a process, options appraisals, implementation and conduct of procurement processes, to defending and bringing procurement challenges for contracting authorities and bidders. The fact that we act for both contracting authorities and bidders means we always advise in the context of understanding both perspectives
Capsticks’ specialist knowledge of NHS healthcare, social care, housing and emergency services organisations means we truly understand our clients’ needs. We appreciate the unique operational, reputational and financial challenges faced by these clients. We will always provide pragmatic, tailored advice with a clear understanding of each client’s goals and appetite for risk in mind and we won’t sit on the fence with our advice—we will help give you a steer.
How can Capsticks help?
- Procurement process: Tender structuring
We can work with you to identify all of the available options and best procurement route for your desired outcomes. This will include consideration of all relevant procedures under the Public Contracts Regulations 2015 and any potential exemptions. We can also help you to work out whether a particular framework agreement is suitable for your requirements.
Our structuring advice can also include appropriate route maps and associated timescales. We will work in partnership with you to help to deliver your project on time and within budget. We know that taking the time to structure the procurement correctly at the outset will save considerable time and expense in the later stages.
We can assist you with and have precedents for all elements of the required contractual and procurement documentation from adverts, standard selection questionnaires, invitations to tender, contract terms and conditions to de-brief, and standstill letters. We can support tender evaluation and bidder days, as well as dialogue meetings.
We can also assist with outline business cases, board summary papers and support your own internal governance and decision making procedures in respect of procurement projects and key decision points.
- Procurement process: Commercial contracts, modifications and framework agreements
We understand that our clients’ requirements may change during the term of a contract due to their rapidly changing needs and demands for commissioning/delivering frontline services. We provide a significant amount of support to our public sector clients on all aspects of commercial contracts, extensions, modifications and call-offs from national framework arrangements.
Much of our work recently has been dedicated to providing advice to our clients in their response to the COVID-19 pandemic and securing urgent procurements and contracts within the context of PPNs and guidance. Given the government’s commitment to “build back better”, we also provide clients with the full range of procurement advice related to construction projects and frameworks and energy frameworks.
For our private sector clients, we can provide invaluable support in relation to routes to market and compliance and engagement with public procurement requirements.
- Procurement challenges: Contracting authorities
Challenges to procurements can have a significant operational and financial impact for contracting authorities. A bidder will often threaten legal proceedings to try to persuade you to abandon the process or to award the contract to them.
If a complaint is received, there is a short window of opportunity to resolve it before the challenger decides (within 30 days of the grounds arising) whether to start proceedings.
Our experts will:
- talk to you about the quality of the process and the fairness of the points raised by the bidder
- urgently provide you with advice on the strength of the complaint, including preparing a board paper if necessary
- explain to you your options, and provide a clear recommendation to seek to resolve the dispute quickly and cost-effectively (this might include abandoning or rewinding the process to correct defects).
Often bidders want a full explanation of the reasons why they lost and some supporting evaluation materials. Capsticks has a strong track record of engaging in correspondence with bidders to persuade them not to take further action.
If a court claim is started, the law prevents an authority from awarding the contract until the proceedings are ended. We have acted in many of the leading cases about applying to the court to lift the suspension.
Making a successful application will enable you to proceed with your preferred bidder, thereby realising the benefits of the new contract without awaiting the outcome of a full trial.
If the litigation continues, we will guide you through the court process including disclosure, preparation of witness evidence and trial. We will carefully consider whether it might be possible to settle the challenge to avoid trial.
We can also provide training to evaluators and procurement managers to help them improve areas which are often challenged by bidders, including evaluation and moderation processes and record-keeping.
- Procurement challenges: Bidders
It is critical for any bidder to act quickly if they believe something is unfair or has gone wrong in a procurement process.
Our specialist procurement team will provide you with urgent advice to ensure you do not miss the opportunity to enforce your rights. If you sense something is wrong, you should get in touch with us within the first few days of receiving the standstill/debrief letter.
We regularly persuade contracting authorities to abandon their decision due to scoring errors or unfairness, which gives our clients a further opportunity to compete for the contract on fair terms.
We will help maximise the prospect of achieving your desired outcome (a fair chance of winning the contract) by:
- talking to you about your concerns and advising you of their merits
- advising on the documents you might be entitled to by way of early disclosure. This often leads to a strengthening of the concerns;
- Alternatives to litigation, such as offering the authority the opportunity to rewind to fix the problem or to abandon the process.
If an authority resists or ignores you, it may be necessary to start a court claim. This will stop them from awarding the contract. Our team can guide you through all aspects of the litigation, including resisting an application by the authority to lift the suspension to preserve your opportunity to win the contract and, if it is lifted, to seek compensation from the authority.