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Procurement and Outsourcing Journal: November/December 2011
Jack Hayward

Jack Hayward considers outsourcing and employee-led businesses

The coalition’s agenda on the ‘Big Society’ has always included significant references to employee-led outsourcing of parts of the public sector, the so-called ‘John Lewis’ model – a term that I personally dislike intensely. How one can compare the business model used to deliver a successful retail operation with a vehicle for providing social care to vulnerable adults, for example, is a mystery to me. However, the essential thrust of the agenda is employee ownership.

Dr Totis Kotsonis examines the remedies regime and considers the question of how effective this really is

For a long time, the remedies system applicable in the event of a breach of public procurement legislation in the UK was subject to some important limitations. For example, it used to be the case that once a contract was concluded it could not normally be set aside, so the only remedy available to an aggrieved party was that of damages. However, not only were damages generally seen as a less satisfactory remedy, they also proved very hard for an aggrieved party to obtain – a reflection of the difficulty in practice of demonstrating to the court that the procurement breach actually caused loss to the claimant. The introduction of a new remedies regime in December 2009 was designed to address this type of shortcomings.

DWF

Hilary Ross discusses the fining of Marks and Spencers

At the end of September 2011 a penalty of £1.6m was imposed on Marks & Spencers (M&S) for its breach of ss2 and 3 of the Health and Safety at Work Act 1974; one of the largest penalties ever imposed upon a UK retailer. The case centres on the management of contractors and highlights the confusion that often exists in relation to the health and safety responsibilities of those involved in such projects. These duties and responsibilities are particularly relevant when considering outsourcing projects.

Tom Collins looks at the impact of the Commercial Agents (Council Directive) Regulations 1993

The Commercial Agents (Council Directive) Regulations 1993 (the Regulations) came into force on 1 January 1994. They impose an alien concept into English law. While they seek to govern relations between a commercial agent (an agent) and his principal, they also give an agent the ability to claim compensation or an indemnity on termination of the agency agreement. This concept has caused much consternation. This article considers some of the effects of the Regulations and the impact of recent cases.

Luisa D’Alessandro suggests five essential tips for IT procurement

Being tasked with purchasing a new IT system can seem daunting. Technical and legal jargon, lengthy forms of contract that suppliers insist on, and drawn out negotiations can mean that these types of projects can be both hugely time consuming and seemingly shrouded in mystery. Yet, with some careful planning and getting to grips with the basics, this kind of project need not turn into a legal or commercial minefield.

Julie Prior and Deborah Ramshaw investigate the application of the procurement regulations to development agreements: Commission v Spain

In Commission v Spain [2010], the CJEU was again asked to look at when development projects might fall within the definition of a ‘public works contract’ and therefore be subject to the public procurement directive 2004/18/EC (the Directive). The principle that a development agreement may constitute a public works contract was established in Auroux & ors v Comune de Roanne [2007]. Prior to the Roanne decision, it was common practice throughout the UK for contracting authorities to treat development agreements as a category of contract almost automatically exempt from the procurement regime.

Olswang

Melanie Collier and Matthew Bennett contemplate the use of the negotiated procedure

While the state of the economy may have dominated much of David Cameron’s speech at the most recent Conservative Party conference, back in March the prime minister’s ire was directed at government bureaucrats and public sector procurement managers:

Bristows

Hazel Grant, Adrian Sim and Scott Allardyce outline the position of bidders on a breach of procurement law

Compliance with procurement law is often seen as the responsibility of the contracting authority. Strictly speaking, this is correct. The UK Public Contracts Regulations 2006 and Utilities Contracts Regulations 2006 (the Regulations) apply to contracting authorities to ensure all bidders are treated fairly. So when should bidders worry about procurement law breaches and, moreover, is there anything that bidders can do in advance to protect themselves against the consequences of a breach of procurement law?