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Last updateTue, 24 Feb 2015 5pm

Procurement and Outsourcing Journal: September/October 2015

Patrick Parkin and John Houlden have news on the enforcement of framework agreements

Public authorities commonly use framework agreements to put in place a roster of preferred suppliers from whom they can quickly call off supplies or services when they arise. Frameworks can be set up for use by a number of different public authorities (eg groups of local authorities) by one entity, cutting down the need for each to procure similar requirements in parallel. When one of those authorities subsequently uses the framework, any challenges to fairness are likely to be focused principally on the call-off process. However, in principle they would also relate to the framework itself.

RPC

Geraldine Elliott and Elizabeth Wiggin provide a helpful reminder on the incorporation of exclusion clauses

Very often, it is not what the parties have agreed to do but what they have agreed to exclude from a contract that proves the most problematic area for both negotiation and dealing with any alleged breach. And yet, unless an exclusion clause is properly incorporated into a contract, it will be unenforceable. The clause must be incorporated using unambiguous language and should not be too wide in scope. The decision last year in Fujitsu Services Ltd v IBM United Kingdom [2014] reiterated the point that the onus will be on the party seeking to rely on an exclusion clause to be able to show that the true construction of the clause covers the liability or obligation that it purports to exclude.

HFW LLP

Jenny Salmon reports on MT Højgaard A/S v E.ON and the lessons to be learned

Contracts are the foundation-stone for the legal rights and responsibilities of the parties to any construction project. However, in the heat of the negotiations, the desire to conclude the deal and progress the project can mean the contractual documentation ends up containing ambiguous or inconsistent terms, which often give rise to disputes when things go wrong.

CMS

Graeme Young looks at the recent consultation on the remedies regime

The European Commission recently concluded a public consultation on the effectiveness of the EU Directive 2006/77 (the 2007 Directive). The consultation is part of a now long-overdue review of the effectiveness of the EU procurement remedies regime. With the approach to review procedures for procurement challenges differing significantly from one EU country to another, the review is likely to put the spotlight on some of the deficiencies of the current remedies regime as it applies in the UK. This article looks at the review and its potential implications for the remedies system as currently provided for in the UK.

James Parker evaluates the government’s recent report on productivity

How the UK plans and delivers its infrastructure development is crucial to making sure the country gets what it needs. This article explores the latest developments further to the government’s productivity plan.

Juli Lau examines the pitfalls of standard terms and conditions

Exclusion and limitation clauses often feature among the key issues in commercial contract negotiations, because they have the effect of setting the parameters on how much, in actual money terms, is at risk in the event of a breach of contract. Similarly, the absence of any exclusion or limitation clauses might put significant sums ‘up for grabs’ in the event of alleged contractual breaches.

Nusrat Zar and Rachel Lidgate investigate a recent judicial assessment of a tender evaluation

In Woods Building Services v Milton Keynes Council [2015], the court held that a disappointed bidder should have outscored the winning bidder in a public procurement exercise, based on the adjusted scores awarded by the court.

Dr Sam De Silva considers the reasons for renegotiating outsourcing contracts

There are many reasons why a customer may seek to renegotiate an outsourcing contract, such as: