Public law, procurement & subsidy control

Overview

Our experienced public law, procurement and subsidy control team have supported clients of all sizes from local authorities and central government to utilities, higher education and housing associations.

We ensure that our advice is expedient, easy to understand and proportionate to our clients’ needs. We take a holistic approach to our advice, regularly working closely with other teams across the firm, such as property, construction, employment and regulatory to ensure that all aspects of the procurement process and the resultant contract are covered.

Our advice can be both technical and strategic in nature and we are able to provide proportionate support to our clients on all procurement and major project requirements.

Key contact

Emily Powell

Partner, Head of Procurement

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Emily advises the public sector on public law, procurement, subsidy control and commercial contracts issues including; Dynamic Purchasing Systems (DPS), OJEU compliant tender processes, substantial amendments under the Public Contract Regulations (PCR) 2015 and Key Performance Indicators (KPI) and service credits in Commercial Contracts.

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Procurement reform

Significant changes to Procurement Law are on the horizon. Together, the Procurement Bill and Social Partnership and Public Procurement (Wales) Bill will reform public procurement in England & Wales. Once these bills come into force, contracting authorities and tenderers alike will need to get to grips with a whole new body of law, utilising differing terminology, imposing different obligations and granting different rights.

Our dedicated hub of resources provides you with essential updates, information and crucial detail of the changes in the law. We will help you to understand the changes and to have confidence that you are able to procure effectively and lawfully once the changes are enacted and implemented.

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Public procurement

Public procurement is a niche area of law that requires specialist advice to ensure the purchasing activity of contracting authorities complies with a suite of procurement legislation. Our lawyers have direct experience of advising on the full range of current procurement legislation including the Public Contracts Regulations 2015, the Defence and Security Public Contracts Regulations 2009, the Concessions Contracts Regulations 2016 and the Utilities Regulations 2016.

Our advice to contracting authorities includes:

Route to market
Advising on the procurement procedure to be used
Contract drafting
Contract management and KPIs
Employment and TUPE considerations
Property considerations, including drafting leases and licenses
Protection of Intellectual Property
Frameworks and Dynamic Purchasing Systems (DPS)
Drafting and advising on tender documents
End to end management of the procurement process
Tender evaluation
Award letters and the standstill period
Procurement challenges

Subsidy control

Subsidy control is a complex area of law that many in-house lawyers from the public sector require expert assistance. The consequences of subsidy control breaches are potentially serious and costly.

Seeking expert advice early on can mitigate against the risk of breach and our experienced team can advise on:

whether projects are captured by the subsidy control regime;
de minimis rules;
the use and application of exemptions – in particular the General Block Exemption Regulation (GBER);
subsidy control considerations in alternative delivery models for public services
subsidy control implications when local authorities undertake commercial activities; and
advising on the structure of projects to ensure there is no unlawful subsidy control.

Public law

Our recent experience includes:

Providing training to all Local Authorities (LAs) in Wales on the role and responsibilities of a Monitoring Officer;
Providing training to board members of a Local Authority Trading Company (LATC) in north Wales. Advice included members role both as board members and elected members of the parent local authority;
Advising on the future delivery of leisure services on behalf of a Local Authority in Wales. At the end of the options analysis, the client chose to establish a LATC and we advised on its establishment. We advised on the powers of the LA to transform its leisure services, the options available, EU procurement law and commercial considerations, company law implications, property issues (including subsidy control considerations), charity law and employment and TUPE issues. We also provided training to board members on their role both as board members and elected members of the parent local authority;
Advising the seven Community Health Councils (CHCs) in Wales (which are coterminous with the seven Welsh Local Health Boards) and providing advice and assistance to the Board whose function it is to advise, assist and monitor the performance of CHCs. We have given detailed advice regarding codes of conduct and procedures to be followed in the event of concerns raised about the conduct of CHC members and CHC staff; and
We are also the sole source of legal advisors to Social Care Wales's Regulatory Committees, including acting as advisors in its fitness to practice panels.

Public procurement is a niche area of law that requires specialist advice to ensure the purchasing activity of contracting authorities complies with a suite of procurement legislation. Our lawyers have direct experience of advising on the full range of current procurement legislation including the Public Contracts Regulations 2015, the Defence and Security Public Contracts Regulations 2009, the Concessions Contracts Regulations 2016 and the Utilities Regulations 2016.

Our advice to contracting authorities includes:

Route to market
Advising on the procurement procedure to be used
Contract drafting
Contract management and KPIs
Employment and TUPE considerations
Property considerations, including drafting leases and licenses
Protection of Intellectual Property
Frameworks and Dynamic Purchasing Systems (DPS)
Drafting and advising on tender documents
End to end management of the procurement process
Tender evaluation
Award letters and the standstill period
Procurement challenges

Subsidy control is a complex area of law that many in-house lawyers from the public sector require expert assistance. The consequences of subsidy control breaches are potentially serious and costly.

Seeking expert advice early on can mitigate against the risk of breach and our experienced team can advise on:

whether projects are captured by the subsidy control regime;
de minimis rules;
the use and application of exemptions – in particular the General Block Exemption Regulation (GBER);
subsidy control considerations in alternative delivery models for public services
subsidy control implications when local authorities undertake commercial activities; and
advising on the structure of projects to ensure there is no unlawful subsidy control.

Our recent experience includes:

Providing training to all Local Authorities (LAs) in Wales on the role and responsibilities of a Monitoring Officer;
Providing training to board members of a Local Authority Trading Company (LATC) in north Wales. Advice included members role both as board members and elected members of the parent local authority;
Advising on the future delivery of leisure services on behalf of a Local Authority in Wales. At the end of the options analysis, the client chose to establish a LATC and we advised on its establishment. We advised on the powers of the LA to transform its leisure services, the options available, EU procurement law and commercial considerations, company law implications, property issues (including subsidy control considerations), charity law and employment and TUPE issues. We also provided training to board members on their role both as board members and elected members of the parent local authority;
Advising the seven Community Health Councils (CHCs) in Wales (which are coterminous with the seven Welsh Local Health Boards) and providing advice and assistance to the Board whose function it is to advise, assist and monitor the performance of CHCs. We have given detailed advice regarding codes of conduct and procedures to be followed in the event of concerns raised about the conduct of CHC members and CHC staff; and
We are also the sole source of legal advisors to Social Care Wales's Regulatory Committees, including acting as advisors in its fitness to practice panels.

Case studies

We acted for a housing association on a number of procurement and commercial contract matters arising in relation to their asset management and home and care businesses.

We advised a large RSL in the South Wales area on the establishment of a framework contract for works.

Webinars

Hugh James Webinars: A dedicated series from our experts, where we talk about topical issues and the latest developments affecting the public and social housing sectors.

Webinar: Procurement Bill deep dive replay
The third in our procurement reform series, covering the latest changes based on the Bill’s progress through Parliament.

Webinar: SPPP Bill deep dive
The second in our procurement reform series, covering the legislation & key tips to ensure you have a sound understanding of the upcoming changes.

Webinar: The future of public procurement replay
The first in our procurement reform series, providing an overview of the SPPP Bill and the Procurement Bill.

Related services

Commercial Construction Corporate and M&A Banking & finance