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Procurement and Outsourcing Journal: March/April 2012
Jack Hayward

In this edition’s update, Jack Hayward finds that this has been an unusual start to the year

Ithink most of us were pleasantly surprised by the Commission issuing not one but three draft directives over the Christmas period. I have long held the view that Christmas and summer were two of the periods in the year when the Brussels bureaucracy ground to a halt from its already slow speed of action. Clearly this year I was proved wrong.

Catherine Wolfenden and Jorren Knibbe look at the applicability of procurement rules to joint ventures with public authorities

Do the procurement rules apply? A question that should be easy to answer, but often isn’t as the contractual relationships between the public, private and third sectors evolves. Whether a simple contract award or complex PPP/PFI, the public procurement rules (EC Directive 2004/18/EC (the Directive) and the Public Contracts Regulations 2006 (as amended, England Wales and Northern Ireland) (PCR)) will have to be followed at some point. Government policy is pushing for efficiency and savings using shared services, collaborative procurement and mutualism. This is driving the use of novel joint ventures, public/public contracts, mutual structures and early market engagement. This article looks at guidance from case law and the proposed legislative changes on the application of the procurement rules in this area.

Dechert LLP

Charles Wynn-Evans examines the impact of recent decisions on business transfers and insolvency

This article discusses two important recent cases that are of considerable importance for those involved in handling transactions that potentially fall within the scope of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), whether involving an outsourcing or procurement exercise that could attract the application of the legislation either at the commencement or termination of the relevant procurement arrangements. Whether TUPE applies to a particular situation and whether those dismissed around the time of the transfer can claim the protection of the legislation is important for those structuring and documenting the relevant commercial arrangements, in terms of the transfer provisions, and any indemnities, in respect of associated employment liabilities.

Roderick Ramage reviews the relationship between outsourcing and pensions

It is common knowledge that if you outsource a service, at least if you are in the public sector, the contractor takes the employees and must provide a broadly comparable pension. At face value, that would appear to be both a fair and equitable approach, but far from straightforward. This is actually quite an interesting subject, and when a lawyer says ‘interesting’, everyone else hears either ‘trouble’ or ‘expensive’ or both. I hope to show in this article that the position is not quite as straightforward as it seems, it also need not be as expensive as is feared

CMS

Ian Stevens considers the potential utility of the OSS toolkit

Open source software (OSS) has not been regularly used by the government, even though its OSS policy has been in place since 2004.

Angus Walker analyses the progress of the Infrastructure Planning Commission

The Infrastructure Planning Commission (IPC) was set up in 2010 to receive, examine and decide applications for 16 types of nationally significant infrastructure projects (NSIP). This article summarises progress with live and up-and-coming IPC projects.

Blair Adams assesses the importance of services provided and TUPE for outsourcing contracts

In this article, I shall be considering whether recent cases on the application of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE Regulations) are limiting the application of the legislation in an outsourcing scenario.

Berg Legal

Luisa D’Alessandro discusses the practical and commercial considerations in drafting agency agreements

The importance of putting clear contracts in place when appointing any kind of sales or purchase representative should not be underestimated, especially when appointing an agent. In this article, we take a look at some of the commercial and practical issues which ought to be considered when negotiating a new agency agreement, including commercial agency arrangements that fall under the scope of the Commercial Agents (Council Directive) Regulations 1993 (the Regulations) (although those provisions will not be the main focus of this piece).