If you are involved in the decision of how to structure your multi-organisational team for a strategic bid e.g. as a prime, sub-contract, consortium etc., you need to watch out. Recent court cases have shown “Here may be Dragons” for the less well informed! Bevan Brittan (a Procurement Law specialist) has helpfully summarised two recent court decisions which may alter your view on how to proceed. It advises that although there are several ways in which you may team to bid for a Public Sector opportunity, the choice of how to structure your bidding entity may come back to bite you at the end of the process.
In esssence if you are a sub-contractor, you will not have the right to challenge the outcome of a dodgy procurement. If you create a Special Purpose Vehicle to bid, you will then be limited in the types of losses you can claim. These cases suggest that if you expect to put a lot of work into a bid and want to retain the power to challenge, you need to be the prime or in a consortium.
The full article is at https://www.bevanbrittan.com/insights/articles/2024/lessons-for-bidders-in-public-procurement-sub-contracting-and-joint-ventures/. I have tried to summarise it in these two paragraphs to help you get the gist, but I recommend you read it if the topic is of interest to you.
Happy bidding!!
