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Procurement and Outsourcing Journal: January/February 2016

Elizabeth Jenkins looks at the implications of housing shortage

It is almost impossible to avoid or ignore the fact there is a ‘housing crisis’ in the UK which, if not tackled, is going to severely limit the economy’s growth and the government’s objective to reduce the economic deficit. The housing crisis is not just about the need for more general housing, housing for first-time buyers or housing to rent, it includes all types of tenures and in particular affordable housing for the elderly and vulnerable. The answer of course is to increase the supply of housing but the more difficult question is how to do this. A combination of solutions is required to ensure more housing is built – particularly affordable housing that is suitable for the elderly and those with social needs. These solutions will involve different participants, different tenures and different financial models.

Mark Lawrence and Jonathan Pratt investigate recent Supreme Court guidance on break rights and implied terms

The year 2015 saw a series of landmark Supreme Court decisions on contract law. In Arnold v Britton [2015], the Supreme Court addressed the tension between ‘literal’ and ‘purposive’ approaches to the interpretation of contracts and came down on the side of giving words their natural meaning. In Cavendish Square Holding BV v El Makdessi; ParkingEye Ltd v Beavis [2015], the rules on penalty clauses were overhauled.

John Houlden, Stephanie Rickard and Patrick Parkin discuss the use of new standard forms for public procurement notices

The European Commission recently published a set of new and revised standard forms for publishing public procurement notices (Implementing Regulation (EU) 2015/1986). The Crown Commercial Service (CCS) published a policy note (Action Note 17/15) on 2 December 2015 confirming government policy that all contracting authorities should use the new forms.

Peter Kershaw examines the continued devolution of planning powers

On 17 November 2015 Greg Clark, the Secretary of State for Communities and Local Government, confirmed in a written statement to the House of Commons that the government had reached landmark devolution agreements with local authorities in the Liverpool City Region and in the West Midlands.

Ruth Bamforth reports on the New Fair Deal provisions

Pension provision is an emotive subject. As time passes fewer private sector workers have access to future service pension benefits in defined benefit pension schemes. For these workers, the government’s main concern is to ensure adequate minimum pension saving. In contrast, public sector workers continue to enjoy the more generous (although reformed) defined benefits provided by the public sector pension schemes. The protection of pension provision for public sector workers who transfer to the private sector is a political imperative, therefore. This article looks at these protections, in particular New Fair Deal, and highlights practical considerations for those involved in public to private sector outsourcing transactions.

Rebecca Rees reviews the evaluation of tender pricing

Contracting authorities procuring in the economic downturn have been poorly served by traditional approaches to evaluating price. The return of lowest-price tendering (either as part of a lowest-cost tender or best price-quality tender) has resulted in low prices that enable contracting authorities to demonstrate at the outset that they have obtained good value for taxpayers’ money. However, the downside of this approach can often outweigh the financial savings made, resulting in poorly-performed contracts, disputes and claims as the provider seeks to recoup lost costs or, in extreme cases, provider insolvency. Put bluntly, choosing the wrong financial evaluation tool can cause lasting damage, or even a fatality, to a contractual relationship.

Noel McMichael and Clare Arthurs analyse the impact of Makdessi

The Supreme Court has re-examined the rule against penalties in contracts. Its judgment in the joined cases of Cavendish Square Holding BV v El Makdessi; ParkingEye Ltd v Beavis [2015] has been widely welcomed as introducing greater clarity and flexibility to this somewhat opaque principle. Just how much certainty will be gained in practice remains to be seen. What is clear is the Supreme Court’s continued determination to protect the sanctity of contracts and minimise judicial interference in freely negotiated agreements after the event (see also Arnold v Britton [2015]).