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Procurement and Outsourcing Journal: November/December 2013
Jack Hayward

Jack Hayward reports on a busy month in procurement practice

Just as we go to press the decision in Covanta Energy Ltd v Merseyside Waste Disposal Authority [2013] has been released. The gist of the case is as follows: the High Court granted an injunction preventing a defendant contracting authority from entering into a contract pending the outcome of an action by an unsuccessful bidder. Since the procurement procedure was launched prior to 20 December 2009, the automatic suspension regime introduced by the Public Contracts (Amendment) Regulations 2009 was not applicable. The case concerned the procurement of a high value and long-term contract for a new waste disposal facility. The procurement process (using the competitive dialogue procedure) lasted over six years.

Catherine Wolfenden investigates the implementation of the draft EU directives

Three new draft Directives on the procurement of public contracts are awaiting a final vote in Europe. The current timetable is that they will be formally approved in December 2013, with member states given two years to transpose them into national law. The UK Cabinet Office, however, has more ambitious plans. There is political drive to have the Directives in force in England and Wales via new regulations by summer 2014.

Liz Dunn and Stephen Humphries explain the opposition to HS2

The High Speed 2 (HS2) rail project has recently generated considerable press interest. The two-phase national scheme, designed to link a number of England’s major cities, has simultaneously been criticised as an unnecessary waste of tax payers’ money that will cause irreparable environmental damage, and praised as a key driver for business growth between London, Birmingham, Manchester and Leeds (or, those areas and London, depending on where you live). HS2 came under considerable scrutiny during the party conference season, especially from Ukip who are vehemently opposed to scheme, with Nigel Farage dismissing the project as ‘bonkers’. Although HS2 initially secured cross-party support, as time goes on, and the likely costs of the scheme become clearer, the government is increasingly criticised for having focussed too much on journey time reductions as the main justification for the proposal. HS2 increasingly looks like it will be one of the political footballs of the next election.

Martin Vincent examines exemption from the Public Contracts Regulations

There is seemingly a lot of confusion out there regarding contracts between contracting authorities and whether they are exempt from the Public Contracts Regulations 2006. We are seeing many instances of ‘wishful thinking’ on the part of contracting authorities, when the legal position is somewhat different. A couple of recent cases have aided clarity and the new Directive codifies these requirements further.

Dr Stuart Thomson looks at the importance of policy development

Involvement in the development of policy can take many different forms, but participation and engagement in particular can make real differences to the future success of an organisation.

RPC

Louisa Sutton summarises recent Cabinet Office guidance

The Cabinet Office has issued a Procurement Policy Note (PPN), which summarises the main outcomes of the new EU Directives relating to public procurement, utilities procurement and service concessions. The PPN also outlines the next steps in finalising and implementing the Directives.

CMS

Victoria Peckett and Ted Rhodes review the toolkit launched for UK companies bidding for Rio 2016 contracts

One year on from the London 2012 games, there has been renewed celebration of the success of those games – and also a growing sense of anticipation for the next games in Rio, which are now only three years away. UK businesses can of course participate in tender processes for contracts to be awarded in connection with the Rio 2016 Olympic and Paralympic Games. While undertaking such a task in a different jurisdiction with a different language can seem daunting, CMS (London and Rio offices), in conjunction with both UK Trade & Investment (UKTI) and the Law Society, have produced a toolkit to guide UK businesses though the various Brazilian procurement processes. The toolkit was launched at UKTI’s Global Sports Project Seminar: Rising to the Challenge – Delivering the London 2012 Business Legacy, held in London in July.

Julie Scotto discusses the disappointing start for the green investment bank

What initially started out as an idea to make the UK government the ‘greenest government ever’ could in fact become a failed scheme. The target of 10,000 people to sign up to the ‘green deal’ (a scheme supported by the green investment bank), by the end of 2013 (set by the minister for energy and climate change) has not been met, in fact, quite the opposite, since only a mere 132 people have committed to the scheme after eight months of its commencement.

Jeremy Glover outlines the Corelogic case

The case of Corelogic v Bristol City Council [2013], where Corelogic sought to amend its claim arising out of an alleged breach of the procurement regulations, provides a useful reminder about the 30-day limitation period that applies. Claims must be issued and served in this period that runs from the date when a claimant first knew or ought to have known that grounds for starting proceedings had arisen. A party cannot seek to get round this by adding ‘new claims’ which, at the time of the amendment, are barred by limitation.

Dr Sam De Silva considers the utility of governance models

In any long-term outsourcing relationship, there are bound to be issues – avoiding them is nearly impossible. Some may think that after the contract is signed they can sit back and let the service provider and customer get on with it. But unlike a sale-purchase, outsourcing contracts are long-term relationships where each party has responsibilities that continue, and changes (and problems) are inevitable.