In Competition… Competition & Public Procurement Law: August 2026 Update
September 2026Welcome to the thirteenth edition of In Competition.
August was a month about entitlement, and specifically about where entitlement comes from. The Technology and Construction Court told a third-country bidder that a procurement conducted under regulations it could not invoke gave it a duty of good faith consideration and nothing more. It told a challenger who had established a transparency breach that a breach without loss produces a declaration rather than damages. It told a subcontractor that a project bank account protects those who have completed the machinery to join it, and not those who have merely relied on its existence. In Luxembourg, the President of the General Court told Broadcom that privilege follows the jurisdiction where a document sits rather than the jurisdiction whose law the company would prefer to apply.
The policy side moved in the same direction. Procurement Policy Note 026 converts social value from a bid promise into a published, reported and enforceable performance obligation with consequences at the next competition. Ireland published its first national procurement strategy. Both are documents about turning stated intentions into machinery.
On the merger side, two cases make the same point about completion. The CMA imposed an initial enforcement order on a completed fleet services acquisition before formally opening Phase 1 and concluded a Phase 2 investigation into a transaction that had also completed before the reference, accepting a structural remedy seven weeks ahead of deadline. Speed and structural rigour are running together rather than in tension.
Competition enforcement and merger control
CMA opens the door further to pro-growth collaboration (29 July 2026)
The CMA expanded its guidance on collaboration between businesses and made an express open offer to engage where businesses have carried out a self-assessment but genuine competition law uncertainty is deterring arrangements capable of generating wider benefits. The guidance covers research and development, production and joint ventures, purchasing, commercialisation and information exchange. It sits within the CMA’s wider programme of facilitating collaboration in the Industrial Strategy priority sectors, and follows its stated interest in hearing from sectors where there is concrete evidence that competition law concerns are chilling beneficial cooperation.
Why does this matter?
This is directly relevant to construction and engineering alliances, consortium bidding, innovation partnerships and joint purchasing arrangements, all of which have long been conducted with a degree of unexamined discomfort. It is not a safe harbour, and treating it as one would be a mistake. Project partners still have to distinguish legitimate cooperation from unnecessary exchange of competitively sensitive information, or coordination over bids, customers or pricing. What has changed is the value of the paperwork. Where competitors collaborate on a major project, a documented self-assessment recording why each restriction is necessary is now both the compliance answer and, for boards and their professional indemnity and directors and officers insurers, the evidential one. The open offer is worth taking up in the sectors where it bites, because the alternative is a collaboration structured around a risk nobody has tested.
Faster merger control does not mean softer remedies (20 August 2026)
The CMA cleared Vandemoortele’s completed acquisition of Délifrance seven weeks ahead of its Phase 2 deadline, subject to a structural package. Vandemoortele must sell its laminated dough production facility in Worcester together with the assets needed for the business to operate as an independent competitor, including UK customer relationships, contracts, staff and relevant rights, alongside transitional services and manufacturing arrangements to maintain continuity during the transfer. The package was subsequently extended to include the UK sales operation at Staines-upon-Thames. Vandemoortele had completed the acquisition before the Phase 2 investigation and conceded in May 2026 that the merger might be expected to substantially lessen competition. The inquiry chair attributed the pace of the process to that early concession and to engagement on remedies at an early stage.
Why does this matter?
The CMA’s emphasis on pace is real, and this case shows what buys it: a party that concedes the substantive concern early gets a materially shorter process. What it does not buy is a lighter remedy. The package here is a full structural divestment with people, contracts and customer relationships attached, which is the most demanding form of remedy to implement and the one most likely to founder on the suitability of the purchaser. Construction materials, engineering and infrastructure groups contemplating consolidation should be scoping potential carve-outs before signing rather than treating remedies as a late-stage regulatory question, because the identity of a credible upfront buyer is a commercial problem with a long lead time. Read alongside the fleet services order above, the message for anyone completing ahead of clearance is consistent: the CMA has both the tools to freeze integration and the appetite to require disposal of what has already been combined.
Broadcom and VMware fail to shield United States privileged material (3 August 2026)
The President of the General Court dismissed an application for interim measures in Case T-280/26 R. Broadcom and VMware International sought suspension of a Commission decision of 26 February 2026, adopted under Article 18(3) of Regulation 1/2003 in Case AT.40924 concerning VMware software licensing, so far as it compelled production of documents located outside the European Union and documents recording non-EU legal advice privileged under the law of non-EU jurisdictions, principally the United States. The applicants argued that international comity required the Commission to exercise self-restraint and defer to non-EU privilege rules. The application was refused, the Court observing that it falls to the Commission to decide whether a particular item of information is necessary to bring an infringement to light. The order concerns interim relief only and the substantive challenge remains pending.
Why does this matter?
EU privilege has never extended to in-house counsel, and it has never turned on the protections available where a document was created. What this order confirms is that neither point will be softened at the interim stage, and that a company facing an information request cannot expect the Commission to be restrained by a foreign privilege claim while the argument runs. For multinational groups the practical consequence is that where a document sits, and the qualification of the lawyer who wrote it, now determine its protection more reliably than how sensitive its contents are. The second applicant is an Irish-registered company, and for many United States groups the European footprint runs through Dublin, which is where advice is generated, stored and, if requested, produced. Groups routing sensitive advice through United States in-house counsel on the assumption that it is protected should test that assumption now rather than after a request arrives.
Public procurement
PPN 026: social value becomes a performance obligation (5 August 2026)
The Cabinet Office published Procurement Policy Note 026, a new Social Value Model replacing the PPN 002 Model. It applies to central government departments, their executive agencies and non-departmental public bodies, for covered procurements under the Procurement Act 2023 with a total contract value of £1 million or more including VAT, and to procurements commenced on or after 1 January 2027. During the transition either edition may apply. The minimum weighting is 10 per cent for contracts from £1 million to below £5 million, and 20 per cent for contracts of £5 million or more. The threshold at which the Model applies at all rises from £139,688 including VAT to £1 million. Good jobs, skills and opportunities become the route to meeting the weighting, and the separate SME and VCSE award criteria in PPN 002 are removed.
For contracts of at least £5 million, authorities should also set at least one social value key performance indicator in addition to the indicators required by section 52 of the Procurement Act 2023. Those indicators are published and reported at least annually, and poor performance against social value commitments is capable of being relevant when future exclusion grounds are considered. Detailed guidance is due in autumn 2026 and will set the sub-criteria for each award criterion, the evaluation methodology, the list of community programmes and the definitions of target cohorts.
Why does this matter?
For construction, infrastructure and consultancy suppliers, almost every meaningful central government contract sits above the £5 million line, so the weighting doubles at exactly the value band where these clients compete. That is a scoring change large enough to decide competitions on its own. The removal of the alternative routes is the trap: narratives built around carbon reduction, wellbeing or supply chain outcomes will not score against the new criteria, and bid libraries assembled over the last three years will need rebuilding around workforce data on pay, conditions and progression.
The more consequential change is downstream, and it is where the real liability sits. Social value moves from a promise made to win a tender into a published, annually reported contractual commitment, with a route through to exclusion if performance falls short. Ambitious bid commitments have always been easy to write and hard to deliver; they are now written into a mechanism that records the gap and carries it forward to the next competition. Anyone drafting a social value response should be asking whether the commitment is costed, deliverable and capable of KPI verification, and anyone advising on it should be looking at the interaction between reported underperformance and the discretionary exclusion grounds. The autumn guidance will determine how demanding compliance actually is, and it is worth engaging with while it can still be influenced.
Involve Visual Collaboration Ltd v Secretary of State for Work and Pensions [2026] EWHC 2209 (TCC): breach without loss (20 August 2026)
We reported on the earlier refusal of the High Court to lift the automatic suspension in this case. The claim has now been tried.
The court held that the Department was entitled to re-moderate technical scores where concerns had arisen about the original evaluation. It nevertheless found a transparency breach, because an evaluator used extraneous comparative material that formed no part of the stated criteria, and it stressed the prudence of retaining a complete audit trail where an authority departs from its planned internal evaluation process. Crucially, the breach caused no loss. The same score would have resulted, and the claimant could in any event have been rejected for failing to comply with agreed conflict of interest mitigation. The outcome was a declaration, with no setting aside and no damages. The claim was brought under the Public Contracts Regulations 2015.
Why does this matter?
First takeaway is re-moderation is lawful. An authority that discovers a problem with its own evaluation is entitled to fix it, which is a more useful answer than the cautious assumption many authorities have worked to. What it is not entitled to do is evaluate against anything other than the published criteria, and the evaluator who reaches for a comparison that was never disclosed will create the breach that the re-moderation itself did not. Second, and more important commercially, breach and liability are separate questions, and causation is doing the work. A challenger who proves a procedural failure but cannot show that it altered the outcome ends the case with a declaration.
For public sector liability insurers the causation point is worth close attention. We would be glad to discuss how that reads across to reserving.
Ecolog International FZE v Secretary of State for Defence [2026] EWHC 2154 (TCC): the bidder with no statutory rights (12 August 2026)
The Ministry of Defence procured soft facilities management for British bases in Cyprus under the Defence and Security Public Contracts Regulations 2011 and awarded to Sodexo. Ecolog, established in the United Arab Emirates, came second. It was common ground that Ecolog was not an economic operator within the Regulations and could not sue for their breach, so it pleaded an implied tender contract obliging the Ministry to run the procurement fairly, equally and transparently.
Pepperall J held that the authority was entitled to invite tenders from suppliers of non-eligible states and to deal with those tenders as though the Regulations applied, without thereby conferring rights under them. No implied contract arose from submission of the completed pre-qualification questionnaire, which expressly stated that only the written contract would have contractual effect. By issuing the invitation to negotiate, however, the Ministry impliedly offered to consider any tender submitted, and to do so in good faith. That implied tender contract was limited to good faith consideration of the bid alongside the others. It did not extend to fairness, equal treatment, transparency or compliance with the Regulations.
Why does this matter?
The Regulations construed here have been repealed, but the reasoning transfers directly to procurement under the Procurement Act 2023 and matters to anyone running or bidding into defence, critical infrastructure or international consortium work. A supplier from a jurisdiction without reciprocal procurement access cannot recreate statutory rights through contract, and a course of dealing that looks like a regulated procedure does not generate the duties of a regulated procedure. For authorities, the drafting point is precise and worth acting on: tender documents should say what rights are being afforded to suppliers outside the protected class, because on this reasoning the invitation itself creates an obligation even where the Regulations do not. For third-country suppliers, the commercial question is whether to accept an invitation on terms that leave good faith consideration as the only enforceable protection.
Ireland publishes its first national public procurement strategy (5 August 2026)
The Office of Government Procurement published Procuring for Our Future: National Public Procurement Strategy 2026 to 2030, Ireland’s first overarching national procurement strategy, delivering a commitment in the Programme for Government to review the procurement process for transparency and SME participation. The strategy is built on five pillars and states a vision of strategic, innovative, sustainable and transparent procurement supporting SMEs, competition, value for money and better public services. Its actions include simplifying and modernising the National Public Procurement Policy Framework, enhancing eTenders functionality, embedding emerging technologies including artificial intelligence across the public sector, and engaging strategically with the Commission on legislation affecting national procurement. An SME test was applied in its development, and it follows extensive consultation including regional roadshows and a supplier webinar. The strategy is expressly framed against the forthcoming revision of the EU procurement regime, and arrives while Ireland holds the Presidency of the Council of the European Union until 31 December 2026.
Why does this matter?
The direction of travel is recognisably the same as in the United Kingdom, reached by a different route: procurement treated as an instrument of economic policy rather than a neutral purchasing exercise, with transparency and SME access as the stated levers. The timing is the striking feature. Ireland is setting its own national direction at precisely the moment it holds the pen on Council business, while the Commission prepares a rewrite of the procurement directives. Contractors and consultants bidding in Ireland should expect more structured SME access routes, more transparency obligations and a steadily more digital process, and should read the action document rather than the strategy alone, because the actions carry the dates. Groups running all-island supply chains now have two national strategies pointing broadly the same way while the legal frameworks beneath them continue to diverge, and that divergence, rather than the strategies, is where the practical difficulty will sit.
Part 10 oversight guidance updated (17 August 2026)
Cabinet Office guidance was updated to clarify the Part 10 oversight regime under the Procurement Act 2023 and the boundaries of the Procurement Compliance Service. The Procurement Review Unit can investigate systemic non-compliance and issue recommendations requiring follow-up.
Why does this matter?
Oversight under Part 10 is directed at patterns rather than individual awards, which makes it a different kind of exposure from a challenge and one that sits outside most authorities’ procurement risk registers. An authority with a recurring weakness in, for example, its transparency notices or its handling of conflicts is exposed to a recommendation and a follow-up obligation without any supplier having brought a claim.
Concluding thoughts
August 2026 brought three themes into focus. First, the courts spent the month drawing a line between having a grievance and having a remedy. Ecolog had no statutory rights and gained only a duty of good faith consideration. Involve established a breach and recovered nothing. A subcontractor relied on a project bank account it had never formally joined. In each case the entitlement depended on a formal step having actually been taken.
Second, procurement policy is converting stated intentions into machinery. PPN 026 turns social value from a scored promise into a published and reported obligation with consequences at the next competition, and Ireland has set out a national strategy whose actions, rather than whose vision, carry the dates.
Third, merger control is moving faster without becoming lighter. Early concession shortens the process; it does not soften the remedy. And completion before clearance now reliably attracts the machinery designed to unwind it.
If you would like to discuss any of the issues raised in this update, please contact Paul Henty.
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