The Exclusivity Provisions of the NHS LIFT Contract and the EU Procurement Regulations

Sarah Pengelly

May 2009

A paper based on the second prize entry in the Hudson Prize essay competition 2008, presented to a meeting of the Society of Construction Law in London on 5th May 2009.

Under the innovative LIFT programme for funding new National Health Service primary care facilities, the Special Purpose Vehicle companies established to assemble and deliver new schemes in each local area (Liftcos) are guaranteed a period of exclusivity under their contracts with the NHS and other local bodies. How does this exclusivity fit with the European requirements for open, transparent and competitive procedures for the tendering and awarding of contracts in the public sector? Sarah Pengelly considers the issues and suggests that aspects of the LIFT structures cannot easily be reconciled with European public procurement rules.

Introduction - What is NHS LIFT? - Exclusivity - Liftco's contractual entitlements - What impact do the Regulations have on this? - Competition aspects of LIFT - Possible solutions - Amending the SSDP - Conclusions.

The author: Sarah Pengelly is a Senior Associate of MacRoberts LLP, solicitors in Edinburgh and Glasgow; she is dual qualified in English and Scots law and is accredited by the Law Society of Scotland as a specialist in construction law.

Text 14 pages.

PDF file size: 133k