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

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

3. 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

4. The Balance Commercial/ Operational/ Financial Technical Legal/
Regulatory

5. 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

6. 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

7. 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

8. 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