March/April 2013 #11 – Law Journals

Update: Oil on troubled waters

Jack Hayward reflects on a new spirit of compromise Generally, cases surrounding the replacement of injunctions with an automatic suspension have simply concerned the lifting of the suspension.When the Remedies Directive came into force back in 2009 I anticipated that there would be a flood of cases around procurement challenges (and anticipated a complementary torrent …

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Contract: Keep the faith

Helen Rose and Sean Ibbetson look at the lessons to be learned from Medirest Contracting parties may need to consider the effect of an obligation to act in good faith even where they have not agreed an express obligation to that effect.Obligations in commercial agreements to act in good faith are now common, particularly in …

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IT: Software slip-ups

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Sherree Westell points out some pitfalls in the drafting of software procurement contracts Suppliers may include generic or high-level descriptions in their standard form contracts and clearly, to avoid any mismatch in expectation, such descriptions will need tailoring to reflect any pre-contract discussions and ensure both parties are entirely satisfied.In recent years, the provision of …

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Tendering: Looking a gift horse in the mouth

Catherine Wolfenden and Ashley Morgan consider the treatment of abnormally low tenders in public procurement An authority cannot reject the tender without seeking clarification of any areas that seem unusually low and evaluating the bid on the basis of the response it receives.In a climate of ever-tightening budgets for public authorities, when a bidder comes …

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Outsourcing: Commercial confusion?

Julian Yew highlights the key areas of change in TUPE for those involved in commercial outsourcing There does not appear to be any exemption for service provision changes affecting a small number of employees of a large organisation.In January 2013, the government issued a consultation paper on proposed changes to the Transfer of Undertakings (Protection …

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Framework Agreements: House of cards

Ruth Smith and Jenny Beresford-Jones investigate the trickier issues of framework agreements ‘In the absence of case law on the specific point, the safest approach is only to use the mini competition award criteria set out in the framework agreement.’This is the second part of a two-part article, in which we shall discuss tricky issues …

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Drafting: Could do better

Dr Sam De Silva discusses the role of continuous improvement in contracting In certain circumstances it may be appropriate, and even desirable, to allow the service provider to share in the costs benefits of a continuous improvement change.One of the challenging areas to draft (and negotiate) in an outsourcing contract is the provisions relating to …

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PFI: Private pockets

John Bennett assesses the possible reform of the private finance initiative A ‘call for evidence’ was made by HM Treasury, following increasing concerns about the long-term liabilities created by PFI projects and the significant windfall profits made by those in the private sector.This article looks at the proposed reforms of the private finance initiative (PFI) …

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