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Procurement and Outsourcing Journal: July/August 2013

Martin Vincent examines the thorny issue of student loans and university funding

The current economic climate continues to place additional pressure on higher education providers, universities and students alike. Increasingly, governing boards are forced to make decisions in regard to the use, receipt and obtaining of funding from various sources. Compounded by the widespread reduction of government funding, governing boards are required to come up with alternative funding structures to meet such needs.

Jack Hayward

Jack Hayward reports on a rather contentious time in procurement practice

I have spent the past few months heavily engaged in procurement exercises around care homes. It has been an interesting experience, particularly fending off the judicial review challenges. I was therefore very interested to see that the Equality and Human Rights Commission (EHRC) has published guidance for commissioners of home care on human rights. The guidance follows a report published by EHRC in 2011, ‘Close to home: An inquiry into older people and human rights in home care’, which highlighted significant shortcomings in the way that care at home is commissioned by local authorities.

Uddalak Datta considers the implications of Pressetext on corporate transactions

Following the decision of the CJEU, in the case of Pressetext Nachrichtenagentur GmbH v Republik Österreich (Bund), APA-OTS Originaltext-Service GmbH and APA Austria Presse Agentur registrierte Genossenschaft mit beschränkter Haftung ECR [2008] (Pressetext), the rarefied world of procurement law, ordinarily of interest to public sector lawyers, has become relevant to corporate transactions.

Dr Sam De Silva reviews best practice for business continuity and disaster recovery schedules in outsourcing contracts

Business disruptions, whether the result of natural disasters, technology failures or criminal acts (incidents), can threaten the business of a customer. Business continuity generally refers to the capabilities needed in the wake of an incident to restore the functionality and availability of networks, systems, and data. Recovery and reconstitution methods must be adequate to cope with the consequences of an incident. If a customer has outsourced various functions or processes, the responsibility for business continuity usually falls on the service provider.

Kevin Calder assesses the potential pitfalls in standstill letters

The concept of a standstill letter goes back to 1999, and a court decision known as the Alcatel case. That case decided that under EU law there must be an opportunity for suppliers to review and if necessary challenge a contract award decision under the public procurement regime before the relevant contract is entered into.

Al Goodwin and Amira Alyamani consider the role and importance of SMEs in procurement

According to the Department for Business, Innovation and Skills figures, at the start of 2012 there were around 4.5 million small and medium-sized enterprises (SMEs) in the UK, forming 99.9% of all businesses by number, and accounting for over half of private sector employment and nearly half of all private sector turnover.

David Sawtell looks ahead from the Medirest judgment

The High Court and Court of Appeal decisions in Mid Essex Hospital Services NHS Trust v Compass Group UK and Ireland (t/a Medirest) [2012]; [2013] have stirred up the previously academic debate about the concept of ‘good faith’ in English law. The original decision of Cranston J at first instance, holding that a term of ‘good faith’ could be implied into a procurement contract, was overturned on appeal. This does not mean that the litigation will have no further effect on how such contracts are drawn up or interpreted. It is now clear that, in the appropriate case, such a term will be implied. There is a broader trend towards the implication of such terms in the appropriate case, a movement that the Court of Appeal recognised.

Clare Arthurs discusses the use of disclosure in the procurement process

The end of a procurement exercise is inevitably a disappointing time for every bidder bar the successful one. This disappointment can be compounded by frustration with perceived failings in the procurement process. Proving (or disproving) such perceptions can be difficult, and must also be achieved within the strict time limits contained in the Public Contract Regulations 2006 (the Regulations). Frustrated bidders can however take heart from the High Court’s recent decision in Roche Diagnostics Ltd v The MID Yorkshire Hospitals NHS Trust [2013], which provides useful guidance on how a bidder may obtain the information it needs by applying for specific and/or pre-action disclosure.