Procurement & Competition

Keating Chambers is a go-to set for procurement which offers “strength and depth of expertise” alongside “a great level of service”. We are at the cutting edge of procurement law and at the forefront of many of the key cases in this area. As expert advocates, we are regularly instructed by government bodies, local authorities, and industry clients in highly complex litigation. We are also strategic advisers to authorities and bidders often involved at all stages of the tender process from design to debrief. Described as “commercial, un-stuffy, client-friendly, committed, personable”, our barristers see things from the client’s perspective. For more resources including blogs, podcasts and case reports please see Procurement Resources 2023.

OUR PROCUREMENT BARRISTERS

We have a “gifted team of talented silks and juniors” which is rapidly growing at the senior end from lateral recruitments and organically with junior members introduced to procurement cases at an early stage. Our leading silks include:

  • Sarah Hannaford KC, who is ranked as a “star individual” by Chambers & Partners, is described as “everything you could wish for in an advocate” and was featured in The Lawyer’s Hot 100 in 2022;
  • Rhodri Williams KC, who joined Chambers in 2022 and is defined as “very approachable and commercially astute with a fantastic understanding of the subject area”;
  • Fionnuala McCredie KC, “a true leader in procurement” who was listed in The Lawyer’s Hot 100 in 2021 off the back of her work on the Rail Franchise Litigation; and
  • The “exceptionally talented” Charles Banner KC, who joined Chambers in July 2020 and was instructed in the ground-breaking Faraday case in the Court of Appeal.

Our experienced juniors include Rachael O’Hagan (“Meticulous, always on top of the detail and excellent on strategy”), Simon Taylor (“a truly excellent advocate”) as well as rising stars like Emma Healiss, and James Frampton.  Other Keating juniors with recent experience in high profile procurement cases, such as Siemens Mobility Limited v High Speed Two (HS2) Limited include Ben Graff, John Steel, and Tom Walker.

OUR PROCUREMENT EXPERTISE

We have “undisputed acumen when handling procurement cases” and our breadth of expertise is wide, with work spanning a variety of projects including (but not limited to):

Rail

  • Acting for both parties in Siemens Mobility Limited v High Speed Two (HS2) Limited, the high-profile challenge brought to the outcome of the HS2 rolling stock procurement (awaiting judgment).
  • A huge victory for our team who represented the Secretary of State in the “Rail Franchise Litigation”. This case was named one of the Lawyer’s “Top 20 Cases of 2020” and was one of the most complex commercial judicial review cases.
  • Alstom Transport UK Ltd v Network Rail Infrastructure Ltd – The procurement concerns the first major digital signalling project in the UK on the East Coast Main Line and has been described by Network Rail as a flagship of the Government’s Digital Railway Programme.
  • Claim brought in relation to the procurement for the management contract for the build of Old Oak Common Station based on alleged scoring errors, alleged abnormally low tender and post award changes.

Infrastructure

  • Successfully defending HS2 in Bechtel Limited v High Speed Two (HS2) Limited [2021] EWHC 458 TCC in a challenge brought to the procurement for construction of Old Oak Common station.
  • Case concerning the procurement of a £1 billion contract for the construction of a proposed new road tunnel under the Thames near the O2 Arena.
  • Acting for the Defendant, successfully applied to lift the automatic suspension on a procurement for facilities management at the Courts.

Healthcare

  • Acting successfully for NHS England in Inhealth Intelligence Limited v NHS England [2023] EWHC 352 (TCC) in a claim relating to the exclusion of a bidder due to a failure to submit a tender response by the deadline.
  • Acting for the NHS defendants in Consultant Connect Limited v NHS Bath and Others [2022] EWHC 2037 (TCC) relating to the award of a contract under a framework for communication services.
  • Acting on both sides in a high-profile challenge concerning the urgent procurement of automated diagnostic software for the purpose of mass testing of COVID-19.
  • Ryhurst v Whittington NHS – Acting for Ryhurst following the decision of the Whittington Health NHS Trust to abandon the procurement of a Strategy Estates Partnership joint venture (SEP) between them.
  • Accessible Orthodontics v NHS England Claim based on alleged scoring errors in a procurement for NHS dental services.
  • Circle Nottingham Ltd v NHS Rushcliffe Clinical Commissioning Group and Nottingham University NHS Trust – Acting on behalf of an incumbent challenger resisting the lift of an automatic suspension of contract award in their challenge of a procurement for the provision of medical services at the Nottingham Treatment Centre.

Entertainment

  • Acting for Live Nation Music Ltd, the unsuccessful bidder for the contract to run Hyde Park Summertime music festival tendered by Royal Parks.
  • Defence MSI-Defence Systems Ltd v Secretary of State for Defence –Acting for MSI in a challenge to the Defendant’s decision to rewind a tender for naval gun systems and reinvite bids on the basis of revised scoring guidance.

Urban Regeneration & Development Agreements

  • Faraday Development Ltd v West Berkshire Council – The lead case on the circumstances in which a development agreement between a local authority and a private sector developer, by which the authority seeks to secure important urban regeneration, is within the scope of the Public Contracts Regulations 2015 and therefore required to be subject to public procurement. Heard in the Court of Appeal.
  • Wylde v Waverley Borough Council – a high profile challenge to the variation of a development agreement between Crest Nicholson and Waverley BC, which also concerned the test for standing in judicial review claims brought on public procurement grounds.

Waste

  • Acting successfully for NHS England in SRCL Ltd v NHS Commissioning Board [2018] EWHC 1985 (TCC), a claim relating to the disposal of clinical waste on grounds and allegations of a breach of the rules governing abnormally low tenders.
  • Community R4C Ltd v Gloucestershire County Council – acting for the defendants who successfully defeated the Claimant’s procurement challenge to the amendment of a substantial contract for the construction and operation of an energy from waste plant.

OUR COMPETITION & SUBSIDY CONTROL EXPERTISE

We also have expertise and experience in the related fields of competition law and subsidy control. Like procurement, competition law has its origins in EU law and competition and state subsidies remain subject to international treaty obligations, notably the UK/EU Trade and Co-operation Agreement (TCA). As a former competition partner in a leading law firm, Simon Taylor has many years of experience of EU and UK competition investigations and litigation in Brussels and London and advises UK companies and public bodies in the area of anti-competitive agreements, subsidy control (formerly state aid), merger control and abuse of dominance. Since working with the European Commission in the 1990’s, Rhodri Williams KC has also long specialised in EU law and public markets, including competition and state aid law. Both Simon and Rhodri have advised recently on the application of the Subsidy Control Act 2022.

OUR PROCUREMENT THOUGHT LEADERSHIP

Our members regularly contribute to legal publications and are in demand as speakers at procurement conferences. They are actively involved with professional organisations including the Procurement Law Association and are instrumental in the development of procurement law. For example, Sarah Hannaford KC was a member of the Procurement Transformation Advisory Panel which was established by the Cabinet Office to contribute to proposals for reform to public procurement after Brexit. Since September 2020, the group have been running bi-monthly procurement surgeries (a roundtable panel discussion tacking key hot topics and audience questions), and in 2021 launched a programme of procurement podcasts (starting with a mini-series focussing on the Transforming Public Procurement Green Paper). Sarah Hannaford KC and Fionnuala McCredie KC are regular speakers at the leading November Whitepaper conference on procurement.

Rhodri Williams KC is a long-standing representative of the Bar Council’s Legislative Reform Committee and European Law Committee. He has been appointed to the Bar Council’s Retained EU Law Working Group, liaising between the Bar and HM Government on the status, extent and effect of Retained EU Law under the European Union (Withdrawal) Act 2018.  Rhodri is also a member of the Editorial Board of the Sweet & Maxwell’s Public Procurement Law Review.

Simon Taylor is a regular contributor to Practical Law and is co-author with the Practical Law public sector team of two leading practice notes on procurement which have recently been updated; Remedies in public procurement law (updated February 2023) and Public procurement in the UK (updated May 2023). He also recently published an article for the Keating magazine on the interface between competition and procurement law; When is public procurement subject to competition law?