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Procurement and Outsourcing Journal: May/June 2013

Luisa D’Alessandro considers the perils of standard terms and conditions

For many routine purchases, buying departments will usually be faced with the standard terms and conditions of their suppliers. These will typically accompany quotations, estimates or order confirmations and more often than not, will be issued in the expectation that buyers will simply agree to them as a matter of course.

Jack Hayward

Jack Hayward turns his critical eye towards terms used and not often considered

On Sunday lunchtime I generally head to my local pub where the ever-genial proprietors Russ and Di ensure a warm welcome. During lunchtime I chat to the other locals, including Derek who is a clinician and Brian who is retired. In fact I know and understand for the most part what everyone does. Obviously, on the odd occasion the topic of my occupation comes up the term solicitor is usually used. However, when I get asked what type of solicitor it becomes a struggle to explain; the concept of outsourcing is easy enough, but public procurement? I usually explain it away by saying it involves ‘bidding for contracts’ but as readers will know that is far from the whole truth.

Fieldfisher

Simon Briskman looks at how to manage a contractual crisis

Most outsourcings are too big to fail. Customers may need a year or more to reprocure and suppliers cannot easily afford to lose significant revenue. Reputations and careers revolve around managing and resolving problems, not hitting the red button marked terminate.

Dr Sam De Silva examines the use of balanced scorecards in outsourcing

The balanced scorecard concept has been around for some time, but widespread awareness of it as a business management tool originates from a 1996 Harvard Business Review article (see Robert S Kaplan and David P Norton, ‘Using the Balanced Scorecard as a Strategic Management System’, Harvard Business Review (January-February 1996)) in which the authors proposed it as a more complete measurement of business performance than the purely financial measurements historically used. The basic idea is that by using a myopic focus on the detailed metrics (and giving each measurement equal weight), a business can lose sight of how well it is actually performing against its strategic objectives. The authors suggested that performance should be measured against four perspectives:

Bristows

In a follow-up article, Helen Rose and Adam Laverty analyse the Court of Appeal decision in Medirest

The recent Court of Appeal decision (Compass Group UK and Ireland Ltd (trading as Medirest) v Mid Essex Hospital Services NHS Trust [2013]) takes a narrower view than the High Court decision (considered in detail in the last issue) of the extent to which an obligation to ‘co-operate in good faith’ in a contract for catering services affected the hospital customer’s obligations to its catering services provider.

RPC

Michael Scott and Danielle Lodge question the wisdom of outsourcing health and safety responsibilities

In this article we question the wisdom of customers seeking to outsource their duties under health and safety law. Companies cannot contract out of their duties and applicable HSE guidance stresses the importance of parties working together to manage risk. Indemnities transferring risk may prove to be unenforceable where the outsourcer itself has been convicted of an offence.

Angus Walker reports on the progress of HS2

The proposal for a high-speed railway line from London to the West Midlands remains on track despite a partial defeat in the High Court in March. Judicial review (JR) proceedings were launched by four parties:

Wolfgang Tiede, Julia Spiesberger and Barbara von Gayling-Westphal review and contrast transparency requirements for public-private partnerships in Germany and the UK

This article assesses the transparency requirements for the procurement of public-private partnerships in Germany and the United Kingdom.