Clarkslegal has one of the leading public sector teams in England and Wales, advising local authorities across the UK. We are best known for our specialist expertise in waste management and other major projects, for example in relation to R&D schemes, regional projects and landfill diversion.
We are also highly-experienced at setting up PPP/PFI partnerships and joint ventures with the private sector, as well as assisting with funding arrangements. These areas are currently of considerable importance to many local authorities across the UK.
The team also has specialist expertise in ethics and standards, and has been advising a number of local authorities in relation to the use of their powers and their authority to act, establishing trading companies, and other governance issues that constitute the ‘core’ of traditional local government work. We have been advising a number of local government and statutory bodies on internal investigations and inquiries.
Collaboration agreements are relevant to many areas of the work that we do. We act for a number of groups of public bodies in projects involving a common aim and, as such, these projects involve a significant element of joint venture, with the form of the joint venture/collaboration varying depending upon the aims and objectives of the clients.
Our expertise covers major capital works from project inception through to the end of a building’s lifecycle. We advise on policy, project structuring, tendering, construction, financing and operating issues, together with preparation of all necessary project documentation.
We have extensive experience in advising on the procurement, by way of restricted procedure, of a variety of different framework agreements to cover such diverse areas as building contacts through to breathing apparatus. In addition, one of our team members has been on secondment to a public sector organisation on a part-time basis to assist in the procurement of multiple frameworks with multiple lots.
We always ensure that the form of contract is bespoke to the client’s requirements. We also advise clients in respect of any post-contract award queries and proposed contract modifications to ensure any variations are within the terms of the contract and will not be considered to be a material change, which could result in a breach of the procurement regulations. For example, a public sector client’s contractor is subject to a corporate restructuring and we have recently advised on whether this will be deemed to be a material change to an essential term of the contract and whether a new procurement process should be undertaken.
As computing power has grown exponentially in recent years, so have concerns that the use of this power will create huge invasions of privacy and otherwise undermine human rights. Lawyers in our team have expertise in technology, employment law and other specialist areas enabling them to deal with a broad range of topics encountered within data protection. The team also provides legal training and policy guidance, tailored written advice and compliance documentation.
Two of our Partners were Freedom of Information Officers in their previous employment, responsible for implementing and training staff on the legislative requirements and drafting associated policy documents. Since joining Clarkslegal, both have advised clients in respect of information laws (including the Environmental Information Regulations).
We advise on LLP and consortium structures and agreements between developer partners and public sector partners on regeneration schemes.
We are experienced in acting for local authorities and public sector organisations in relation to IP and IT issues. We have advised Welsh local authorities in relation to waste management projects and the treatment of IP rights arising on them.
What happens if a public body does something that it shouldn’t? Judicial review acts as a safeguard against such decisions and we have acted on both sides of the argument, often involving an injunction to preserve the current position whilst the Court is ruling on the issue.
We advise on all forms of bond including performance bonds, advance payment bonds and retention bonds and whether they are bespoke or based on standard form such as the ABI Performance Bond.
We regularly advise on the use of performance bonds in the context of the procurement advice we give, particularly in public private partnerships where a special purpose vehicle may be used to provide the services in question.
In addition, on behalf of other employer and end user clients (in both the public and private sector), we routinely advise on and draft bonds and guarantees for new build and refurbishment/fit out works, whilst also advising on the advantages and disadvantages of the various security options available, considered the financial and commercial implications involved and evaluated security bid submissions.
We regularly advise clients on best practice with a view to reducing the risk of challenge by, for example, incorporating sufficient flexibility into drafting of OJEU Notices, appropriate use of selection and award criteria, complying with notification obligations, ensuring the standstill period is complied with and issuing contract award notices in a timely fashion.
We advise public sector clients on the management of and flow of information to unsuccessful tenderers seeking to question the validity of the procurement process. Our involvement has ensured that matters have been resolved without the need for the interested party to escalate any issue to the courts and with limited (if any) impact on the client’s procurement process.
In addition, we have advised private sector clients on challenging procurement processes where there has been ambiguity in the instructions to tenderers or in the contract award criteria with a successful outcome for our clients and without the need for proceedings to be issued.
We advise on all aspects of procurement law and strategy, and this is a key element for many projects. We have experience in all four EU procurement processes and regularly advise on each.
Generally providing strategic legal advice on procurement strategy to a number of local authorities including advice on collaboration, governance and procurement processes including the drafting of Inter Authority Agreements and Memoranda of Understanding for joint procurement and joint working.
Advice on EU Procurement Law is integral to the way we formulate a procurement strategy for a client. The team is experienced at advising on a variety of procurements processes following the open, restricted and competitive dialogue procedure.
We also have experience of the using the negotiated procedure prior to the introduction of the competitive dialogue procedure in 2006, and advising clients on procurement processes where the procurement regulations do not apply, such as low value contracts or contracts exempt from being subject to the procurement regulations. Our advice has also involved us being familiar with public sector clients’ contract procedure rules or standing orders.
We believe that project and risk management are an essential part of the work that we do and because of the relationships that we develop with our clients we believe we become integral to their project team. As a result we are able to assist in project managing solutions and identify and manage risks associated with complex projects. In addition, because the majority of key members of the team have contentious experience they are well placed to manage risks in projects and advise and draft to minimise or avoid such risks.
We regularly undertake risk profiling exercises for clients including advising on insolvency risk, termination rights and project risk management, including dispute avoidance.
Our teams are able to project manage large and complex projects effectively. We add value through chairing regular meetings of internal and external project management teams.
We act for a number of clients in their procurement of strategic partners in a variety of areas including the higher education sector, housing association sector, public services sector and waste industry.
This involves drafting and negotiating major Memoranda of Understanding, Strategic Alliancing Agreements and Strategic Partnering Agreements, call-off development agreements and building contract packages incorporating complex financial models, land transactions, and termination provisions for programmes covering multiple sites.
We also advise on development agreements, sub-development agreements and development management agreements between public sector partners on housing schemes across the UK.
Integral to any advice we give on a procurement process is the content of the tender documents involved in that process. We have expertise in advising on and drafting tender documents for all four EU procurement processes.
Our knowledge and experience of the social housing sector means we are well aware of the cost constraints on our clients and the particular legal and regulatory requirements. Consequently we have an excellent track record of providing tailored, cost effective sector-specific advice.
We advise on and negotiate major strategic alliancing contracts for long-term regeneration projects and sustainable development involving major housing association groups, the university sector, local authorities, developers and other stakeholders, requiring construction contract packages incorporating complex financial models, land transactions and termination provisions for programmes covering multiple sites.
The construction team has advised clients extensively on Building Information Modelling (BIM) and incorporation of BIM protocols and obligations into construction contracts, appointments and supply chain contracts following the Government’s statement requiring fully collaborative 3D BIM for public sector projects as a minimum by 2016.
We provide a wide range of employment services to housing associations. These include drafting and negotiating detailed contractual provisions in relation to employment matters and TUPE arrangements in a variety of public sector contracts and advising on the pensions auto-enrolment regime, the enrolment staging timetable and the correct treatment of eligible job holders.
We recently defended successfully a housing association of complex governance issues following a whistle-blowing claim by a former consultant. In addition to the governance issues surrounding this matter, we advised on potential injunctive proceedings against the individual concerned, as well as helping to resolve the associated complex tribunal claim. This matter demonstrates our ability to provide a high speed response to a complex matter of extreme political sensitivity.
We have drafted a wide range of governance documentation, including Constitutions, Governance Rationales, Standing Orders and Codes of Conduct, Procurement Procedures and Standing Financial Instructions.
We advise all public sector organisations on statutory governance requirements and Board structures (including committee and subcommittee arrangements and processes). We have also advised on consultation requirements, including assistance with detailed judicial review proceedings.
Advising on joint working arrangements between public sector organisations and the legislative framework and guidance governing such arrangements. Drafting detailed inter-authority agreements and joint committee constitutions.
We have drafted procurement strategies for clients including inputting into clients’ business plans for undertaking specific procurement processes, advising on the most appropriate procurement procedure to use, the use of lots and variants.
The team is experienced at advising on a variety of procurements processes following the open, restricted and competitive dialogue procedure. Representatives of the team also have experience of the using the negotiated procedure prior to the introduction of the competitive dialogue procedure in 2006, and advising clients on procurement processes where the procurement regulations do not apply, such as low value contracts or contracts exempt from being subject to the procurement regulations. Our advice has also involved us being familiar with public sector clients’ contract procedure rules or standing orders.