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Procurement and Outsourcing Journal: March/April 2013
Jack Hayward

Jack Hayward reflects on a new spirit of compromise

When the Remedies Directive came into force back in 2009 I anticipated that there would be a flood of cases around procurement challenges (and anticipated a complementary torrent of fees heading my way) and, while there have been an increasing number of cases, mainly due to our friends in Northern Ireland, the anticipated flood of cases (and the torrent of fees) has not materialised. There are lots of reasons for this but I am firmly of the opinion that the main reason for this is the substantial legal costs that are incurred in mounting a challenge.

Bristows

Helen Rose and Sean Ibbetson look at the lessons to be learned from Medirest

Obligations in commercial agreements to act in good faith are now common, particularly in contracts dealing with longer term relationships (such as outsourcing contracts). While there is no general implied obligation under English law for the parties to a contract to act in good faith, an express obligation to this effect is often agreed by the parties to the contract. These obligations are difficult to argue against – naturally, no one wants to suggest that they plan to act in bad faith. However, they can be difficult to apply in practice.

Woodroffes

Sherree Westell points out some pitfalls in the drafting of software procurement contracts

In recent years, the provision of software as a service (SaaS) has become increasingly widespread. Traditionally, procurement of software involved the delivery of software to the customer and its installation and implementation on the customer’s systems.

Catherine Wolfenden and Ashley Morgan consider the treatment of abnormally low tenders in public procurement

In a climate of ever-tightening budgets for public authorities, when a bidder comes along offering a price well below that of its nearest rivals, this must surely be welcomed? Not necessarily. An authority that bites the hand off the keenly priced bidder without properly considering and investigating that bid could well find itself regretting that decision.

Julian Yew highlights the key areas of change in TUPE for those involved in commercial outsourcing

In January 2013, the government issued a consultation paper on proposed changes to the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI/2006/246) to address concerns that the regulations are overly bureaucratic and ineffective. The consultation ends on 11 April 2013 and a number of key legal changes to remove ‘gold-plating’ of the Acquired Rights Directive (2001/23/EC) (ARD) are expected to take effect in October 2013.

Dr Sam De Silva discusses the role of continuous improvement in contracting

One of the challenging areas to draft (and negotiate) in an outsourcing contract is the provisions relating to continuous improvement. Often these provisions are set out in a separate continuous improvement schedule (CI Schedule), the purpose of which is to set out any specific obligations related to improving the value for money of the services over the term of the outsourcing contract. At a very high level, the CI Schedule should set out:

Eversheds

John Bennett assesses the possible reform of the private finance initiative

This article looks at the proposed reforms of the private finance initiative (PFI) and its re-launch as private finance 2 (PF2). PFI was launched in 1992 by the then Conservative government, although its use at that time was very selective. Things changed when the Labour government came to power in 1997 and for over a decade PFI became the main way of delivering public sector infrastructure projects. These schemes followed the design-build-finance-operate (DBFO) model, where a private sector entity (often a special purpose vehicle or SPV) was procured to design, build, finance and operate a facility (for example a school or a hospital), and the public sector entity (the relevant local education authority or NHS Trust) would pay a unitary charge for the use of that asset for a set period (commonly 20-30 years).

Ruth Smith and Jenny Beresford-Jones investigate the trickier issues of framework agreements

Part 1 - 'You've been framed', POJ10, January/February 2013

This is the second part of a two-part article, in which we shall discuss tricky issues commonly encountered when dealing with frameworks, and suggest how contracting authorities can navigate safely through these. We also look ahead at the European Commission’s latest proposals for the new EU procurement Directive (the New Directive) and the changes to the framework regime which that may bring.