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Procurement and Outsourcing Journal: January/February 2012
Jack Hayward

Jack Hayward turns his attention to recent news in the procurement arena

Irrespective of your political leanings you have to have a sneaking regard for the optimism of Francis Maude, the Cabinet Office Minister whose remit includes public procurement, because of his conviction that he can singlehandedly persuade the European Commission to alter the Public Sector Directive to fit the coalition’s economic agenda.

Achilles

Gail Wilson considers the underlying reasons behind the rise in supplier challenges

Supplier challenges are on the rise. Research undertaken by Achilles and Nottingham University into supplier challenges brought under the EU procurement regime in the UK over a 20-year period, indicates that there has been a sharp rise in recent years in the number of cases reaching the courts. Compounding concerns for procurement professionals will be evidence that in 37% of those cases at least one of the claims was supported by the court.

Peter Jansen and Rachel Scarfe review the remedy of ineffectiveness

In October 2010 Eurostar awarded the contract to replace its existing fleet of high-speed trains to Siemens as opposed to Alstom, its incumbent supplier. Amidst surprise in the marketplace, Alstom cried foul about aspects of Eurostar’s procurement process. In Alstom Transport v Eurostar International Ltd & anor (Rev 1) [2011], Alstom applied for, but failed to obtain from the High Court, injunctive relief restraining the award of the contract to Siemens. Its grounds were multiple breaches and non compliances with the procurement regulations, but despite these grounds the court held (on American Cyanamid principles) that the balance of convenience lay with the authority managing the tender process. As this was an almost invariable position for contracting authorities, interim injunctions were difficult remedies to obtain in procurement cases. Therefore, a need arose to give the procurement regulations greater teeth to make enforcement effective. This article looks at the remedies now available under the current procurement regulations, in particular declarations of ineffectiveness.

Graeme Young and Victoria Moorcroft contemplate the future of the competitive dialogue procedure

In this article we consider the competitive dialogue procedure and the criticisms levelled against it in the UK. We then go on to consider the current thinking on reforms to the contract award procedures provided for in the principal EU Directive governing public procurement (Directive 2004/18) and whether proposals to make it easier to use the less prescriptive negotiated procedure could render the competitive dialogue (CD) procedure redundant. We conclude that many of the criticisms levelled at the CD procedure appear to relate more to poor planning and execution and less to the procedure itself, at least as provided for in the Directive, and that any reforms to the current procedures need to be careful not to confuse the choice of procedures further for contracting authorities.

Rosemary Choueka investigates Cabinet Office initiatives following the Bombardier tender

In July 2011, the Canadian train maker Bombardier announced plans to cut more than 1,400 jobs at its UK plant in Derby. This, it said, was the direct result of its losing out in June to Siemens, the Germany company, in the tender process run by Thameslink to build 1,200 carriages for the service. The Thameslink contract had been regarded as vital to the Derby plant and the loss left the last rolling stock manufacturing facility in the UK with no choice but to make employee cutbacks. Coming in the middle of the economic downturn, the failure by Bombardier to win the contract and retain the business in the UK seemed all the more dire.

Quigg Golden

Robert Rooney examines the lessons to be learned from Henry Brothers v Department of Education for Northern Ireland

In 2008, the Belfast High Court shot to prominence in the procurement world after two major judgments set aside frameworks for work valued at over £1 billion (Henry Brothers (Magherafelt) v Department of Education for Northern Ireland [2008] and McLaughlin & Harvey Ltd v Department of Finance & Personnel [2008]).

Jack Hayward

Jack Hayward and Anthony Butler discuss strategies for outsourcing to employees from a local authority perspective

Outsourcing is not a new concept for local authorities, and over the past 20 years has become an accepted method of service delivery, although its use often depends on the political make up of the authority concerned. However, the coalition government and the Big Society agenda have moved the goal posts significantly by introducing the notions of employee-driven delivery vehicles. This is a novel approach and one that has caused some confusion among local authority policy makers.

David Gollancz considers the efficacy of pre-nuptial agreements to defeat claims for ineffectiveness

The remedy of ineffectiveness was introduced into European legislation by Directive 2007/66/EC, implemented in England, Wales and Northern Ireland by the Public Contracts (Amendment) Regulations 2009, which amend the Public Contracts Regulations 2006 (the PCR) and the Utilities Contracts Regulations 2006 (the UCR). The remedy is available in respect of public procurements commenced on or after 20 December 2009.