Enablers and Blockers: Public Procurement Highways UK 2017 Enablers and Blockers: Public Procurement Chris Jackson Partner

UK Implementing Legislation Key Principles of Public Procurement TRANSPARENCY Treaty Directives UK Implementing Legislation EQUALITY OF DEALING Plus potentially contract (express or implied)?

What is a Public Procurement Exercise? Supreme Court Ruling April 2017 (“Sufficiently serious requirement”) Like Judicial Review Administrative exercise Policy & public money VFM Delay to achieve right outcome Vs Damages (pay twice) Private Compensate for errors Get decision right (some discretion?) Compliance with process Fair treatment of bidders Forensic hindsight review Like a contract

The Balance Commercial/ Operational/ Financial Technical Legal/ Regulatory

Issues for Bidders including… Unsuitable requirements from another market segment ? Brexit impact Frameworks: amount of ‘frame’ vs amount of ‘work’ Resourcing / Skills vs (un)certainty of (+ delays in) pipeline Approvals Sub-approvals Sub-sub-approvals Genuine Equality + Transparency Multiple stages and complexity Relationship / depth vs Competition / open market Consistency of project process Bid costs + time vs success rate

Issues for Authorities including… Relationship / depth vs open market Legal / Regulatory Complexity Delay Challenge risk : Overturn or ‘pay twice’ Time / Cost Brexit impact Unrealistic legal standards required? Procurement team / operational team interfaces Resourcing and Skills

Areas of focus (Authorities) PRE-MARKET ENGAGEMENT COMPETITION EVALUATION CONTRACT AWARD Focus on testing: market; likely scope; business case assumptions Focus on clarity of: procurement strategy; contracting strategy; scope; financing/pricing; and processes to managing negotiation Align incentives Focus on: early development and testing of financial Capacity, technical capability/experience, balance of quality vs whole life cost. Choice of Evaluators (strengths & weaknesses); audit trail Focus on: nature and quality of debrief; management of expectation; contract management

Other Actions Macro factors Philosophy of procurement post Brexit? Priorities: Public v Private approaches Efficiency Certainty of pipeline Avoiding delays and multiple approval levels Resourcing decisions Aligning incentives Competition phase Delivery phase Opportunities Embedding best practice and innovation Driving genuine value and synergies Drive transport policy outcomes