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Procurement and Outsourcing Journal: May/June 2012
Jack Hayward

Jack Hayward reports on new opportunities for practitioners

I attended the procurement law day at Bangor University in North Wales on the 30th March held by the Institute for Competition and Procurement Studies. I chaired the session on Remedies and Judicial Review with papers from Nigel Giffin QC of 11 KBW and Andy Denny the Head of Public Litigation at Allen and Overy. The day was part of a wider Procurement Week.

Gowling WLG

Christopher Brennan considers the impact of the proposed EC Directives

Public procurement law is set to change following proposed new directives issued by the European Commission in December. Updating current rules, which are associated with lengthy, inflexible and expensive processes, they indicate a change for the better.

David Sawtell assesses recent case law on restricting the liability of service purchasers

When a company or public body contracts out a function, the duties and responsibilities of the service provider and the service purchaser are often laboriously defined and intricate indemnities entered into. It is normally, quite accurately, assumed that it will most likely be the service provider who will be responsible for its own defaults. These arrangements and assumptions can be rudely disrupted if a claimant successfully argues that the purchaser owes a direct, non-delegable duty of care, bringing it into an action as a defendant. Even the most well-drafted contracts could then be short circuited if the service provider were to become insolvent and it is either uninsured or, if its insurance company, is able to avoid liability. In its recent decision in Woodland v Essex County Council [2012], the Court of Appeal showed a red light to a party who tried to assert that a school or education authority owed a non-delegable duty of care, but kept open the possibility that in a more suitable case new categories of ‘special’ liability might be allowed through.

Joanne McDowall reviews the new UK procurement regulations

During the course of the next couple of years we will have yet another new set of procurement regulations in the UK, this time in implementation of the European Commission’s package of procurement directives comprising:

Catherine Wolfenden and Jorren Knibbe assess the relationship between confidentiality and the procurement process

Tendering for public sector contracts involves handing over confidential or business sensitive information to a public body. Suppliers are often concerned that competitors do not get access to such information. In turn, public bodies have various obligations to provide information to the public.

Hugh James

Marc Anson and Richard Lane examine the potential of shared services and the community right to challenge under the Localism Act

The need to increase efficiencies and reduce costs has left no industry or business untouched. Local authorities have always been at the forefront of reducing costs and driving efficiencies in the public sector. A number of authorities have looked towards shared services as a significant way to reduce the cost and increase efficiencies. However, for too long, shared services have been largely confined to public sector arrangements.

Nathan Searle looks at what the fans and the critics say about the Common European Sales Law

The European Commission (the Commission) has published a proposal for a Regulation on an optional Common European Sales Law (the CESL) to be introduced by the end of this year. The CESL is intended to operate as a separate governing law that businesses and consumers can choose to apply to their cross-border contracts. The CESL is sometimes referred to as a ‘28th regime’ because it operates as if it were the contract law of a notional 28th member state.

Patrick Mitchell and Matthew Warren discuss recent trends and developments in the UK infrastructure sector

Despite the recent downturn and uncertainty in the European markets, investment in both mature and ‘greenfield’ infrastructure assets in the UK continues to be an attractive option. While deal activity in the sector has generally been quiet, the UK government has made strong statements, including by David Cameron immediately prior to the recent Budget, that it sees infrastructure increasingly as one of the key drivers for the UK’s economic recovery, both in the short and long term. One of the main pillars of this initiative is the government’s push to make the sector more attractive and ‘investable’ for private sector investors from the UK and overseas.