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Procurement and Outsourcing Journal: March/April 2015

Helen Prandy considers the lessons to be learned from NATS

Although this sounds like the headline every holidaymaker dreads as they head for ski slopes or some winter sunshine, it is in fact a way for me to introduce the slightly less exciting subject of the Utilities Contracts Regulations 2006 (as amended) (the Regulations) and the subject of this article, NATS (Services) Ltd v Gatwick Airport Ltd [2014].

Julie Hamilton investigates challenges under the Public Contracts (Scotland) Regulations 2012

Under the Public Contracts (Scotland) Regulations 2012 (the Regulations), where a disappointed tenderer for a public contract raises a court challenge, the public authority is automatically prohibited from concluding that contract with a successful tenderer. In terms of Reg 47(9), this prohibition is only removed when the proceedings are determined, discontinued or disposed of or where the public authority, against which such a challenge has been raised, is granted an interim order by the court which brings an end to the prohibition on concluding the contract.

Julie-Ann McCaffrey reviews the power to exclude poor performing contractors

It is election season once again in the UK and, as the parties actively gear up their political campaigns putting their best feet forward, many voters will look at the performance of the candidates over the past few years in order to assess who will win their vote. A similarity can be drawn between election campaigns and the public procurement process.

In the first of a two-part analysis, Dr Sam De Silva outlines the role of service levels

In most outsourcing contracts, customers are naturally concerned with their ability to motivate a services provider to deliver services that meet the customer’s needs and expectations. While there is no such thing as ‘perfect’ service for the myriad of tasks involved in an outsourcing transaction, customers will expect the service provider to provide these services at a particular service level (ie a specific minimum level of efficiency, accessibility, quality or timeliness).

James Falle and Alexandra Cross explore the impact of policy choices made by the government following its consultation on transposing the EU procurement directives on procurers and suppliers

On 30 January 2015, the government published its response to the consultation on the transposition of the new EU procurement directives. This response signposted the final policy choices.

Mark Lewis examines recent case law on the interpretation of outsourcing agreements

Outsourcing agreements need to cover a lot of ground and yet retain a great deal of flexibility in order for the parties’ contractual relationship to cope with both planned and unplanned change. Contracts often seek to set qualifying thresholds such as ‘material change’ or ‘material breach’. The required flexibility can be obtained, at the cost of certainty, and difficulties can arise over what ‘material’ actually means in practice. Burton J’s judgment in Decura IM Investments LLP v UBS AG [2015] shows the court’s recent approach to this question.

John Houlden and Richard Binns report on Edenred

The English High Court has stayed another contract award, perhaps indicating an increased willingness to maintain automatic suspensions under Reg 47(G) of the Public Contracts Regulations 2006 (the Regulations) pending an early/expedited trial.

John Sykes looks at the myths and reality of mediation and the public sector

I first represented a client in a mediation in 1999. It was all about how a telecoms provider would be paid for use of telephones on hot desks by a major firm of accountants. Hot desks were new and so was mediation, and the business world was suspicious of both. Since then mediation has become the universal panacea for conflict. Hot desks are still viewed with suspicion!