Last updateTue, 24 Feb 2015 5pm

Procurement and Outsourcing Journal: November/December 2014

Sam De Silva reviews the options for intellectual property ownership in outsourcing contracts

In those outsourcing contracts where deliverables are created as a result of the services, the ownership/licensing of intellectual property (IP) should be considered. There are a number of options to consider. It should be noted that there are no right or wrong answers and the approach adopted will depend on a multitude of factors, including the commercial bargaining power each party holds.

Matthew Hall reports on the expansion of competition law litigation in the EU

Each time the European Commission (EC) hands down a competition law fine, it reminds third party companies that they may be able to recover damages from the parties involved. It does this with a clear reminder at the end of its press releases, along the following lines:

Kat Souter explores the implications for the construction industry of the new procurement directive

The new EU directive on public procurement came into force on 17 April 2014 (the directive). Member states have two years to implement the directive into national law and the Cabinet Office has chosen to fast-track the implementation of the directive in England, Wales and Northern Ireland. The directive covers the procurement of goods, services and works. Judging by the title of the draft Public Contracts Regulations 2015 (the draft regulations), we imagine that they will come into force early next year. This article will look at the Cabinet Office’s consultation on UK transposition of new EU procurement directives and the draft regulations in the context of public works contracts: what will the changes mean for the construction industry?

Joanna Bussell examines the legal and practical issues in the establishment of public sector mutuals

The proposal to establish a public sector mutual (PSM) for the future delivery of central or local government services is at the forefront of thinking in terms of public sector service delivery, and at the heart of the government’s ‘Delivering Differently’ agenda.


Aidan Steensma considers claims for loss of profit by unsuccessful tenderers and whether termination for convenience clauses limit this liability

A recent decision of the Technology and Construction Court (TCC) has considered whether a termination for convenience clause limited the extent to which an unsuccessful tender could claim for loss of profit. Previous recent authority in the Commercial Court had found that such a clause would provide such a limit – no entitlement to loss of profit was said to arise beyond the period in which the contract breaker could have terminated for convenience. This view has now been challenged by the TCC.

Deborah Ramshaw and Emma Dewar outline two recent cases of note for practitioners

October 2014 has seen two notable procurement judgments in the High Court (TCC), both delivered by Ramsey J. One judgment is concerned with the ‘automatic suspension’ rules and the correct test to be applied when the court is asked to consider lifting an automatic suspension. The second case concerns the difficult area of disclosure, but in this case in relation to a claim that the contracting authority failed to investigate an abnormally low tender.

Meg Utterback offers an overview of managing risk and avoiding disputes in global infrastructure projects 

The risks faced by investors, owners and contractors on large infrastructure projects in Asia, South America, Africa and other developing nations are varied. Large-scale projects to build infrastructure such as power plants, hydroelectric dams, highways, railways and airports can range from US$100m to billions of dollars in value. These projects often impact local populations, industries and the environment. As local resources are often limited, foreign contractors are called in to undertake the work. Project structures can create a wide web of contracts, contractors and subcontractors subject to domestic and foreign regulations, codes and procedures. Project owners and contractors often fail to consider project risks (or are too late in addressing them), resulting in additional costs and delay, diminished profit and possible litigation. Risk cannot be eliminated but it can be managed.