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Procurement and Outsourcing Journal: September/October 2016

Patrick Parkin and Premila Patel report on recent updates to Contracts Finder

The Crown Commercial Service has issued updated guidance on the use of Contracts Finder – the government’s online database for public procurement opportunities and contract awards (‘Procurement Policy Note 07/16’).

Dr Alexander Csaki and Martin Conrads assess the judgment of the European Court of Justice on ‘open-house contracts’ and its implications for the European procurement market

On 2 June 2016, the European Court of Justice (ECJ) decided on the legitimacy of so-called ‘open-house contracts’ and their compliance with European public procurement law (Dr Falk Pharma GmbH v DAK-Gesundheit [2016]). The ECJ acted on a request for a preliminary ruling under Art 267 of the Treaty on the Functioning of the European Union (TFEU) by the Higher Regional Court (Oberlandesgericht (OLG)) Düsseldorf. The ECJ decided that awards of open-house contracts are excluded from the scope of European public procurement law. This decision has extensive practical significance for public procurement practice and presents some new challenges for public procurement authorities and economic undertakings alike.

Brian Hitchcock looks at what the EU referendum result means for local government and its supply chain while the UK is putting in place its strategy

Most of us involved in public sector infrastructure know that now is the critical time to help provide a clear and positive message which will help promote economic stability, facilitate inward investment and drive economic growth.

Sheridan Treger and Paul Grace examine the condition of the ‘Northern Powerhouse’ concept and what it might mean for promoters of major development in planning terms

When informed of a rumour that he had died, the 19th century American author Mark Twain famously quipped ‘the reports of my death are greatly exaggerated’. Following the Brexit referendum last month, stakeholders are still waiting for similar confirmation about George Osborne’s ‘Northern Powerhouse’ strategy to boost economic growth in the North of England.

Sarah Boland considers a recent ruling on the UCTA unreasonableness test

The High Court has found that the requirement of reasonableness imposed by the Unfair Contract Terms Act 1977 (UCTA) can apply in circumstances where a party’s written standard terms and conditions are incorporated only in part and other terms are tailor-made: Commercial Management (Investments) Ltd v Mitchell Design and Construct Ltd [2016].

Kayleigh Bloomfield discusses the (ir)revocability of agency agreements and constructive trusts upon insolvency

Agency is a universal and flexible institution fundamental to commerce. In a globalised commercial world, one of the most important decisions a business can make is the appointment of an intermediary to market and potentially distribute their products to markets that may otherwise be inaccessible or too difficult to manage principally. As such, agency and/or distribution agreements (ADAs) are regularly used by practitioners in the context of both domestic and international commercial transactions.

Freeths

Robert Bruce summarises proposed planning legislation

The government has recently announced that it will bring forward a new Neighbourhood Planning and Infrastructure Bill in the Queen’s Speech.

Nabarro LLP

Dr Sam De Silva reviews remuneration for service providers

There are a number of different pricing models that are used in outsourcing transactions. This is where the use of outside, independent consultants can be helpful because of their familiarity with different pricing models and their knowledge of going rates. While the customer will want to get the best price possible, it is important for the customer to understand that if the long-term relationship is to succeed, the service provider must make a reasonable return upon the investment that it is making in the outsourcing. A service provider that thinks that it is being underpaid will try to find ways to reduce its costs or increase the customer’s fees. The goal is to pay a fee that fairly rewards the service provider but does not overly reward the service provider to the detriment of the customer.