GLOSSARY
Procurement definition
What does Procurement mean?
In construction, procurement is the process the client goes through to bring about construction works, ie how it buys the design and construction of its project. ‘Methods of procurement’ and ‘procurement routes’ are commonly used to refer to ways that the design and construction of a project can be procured.
Construction
A method of obtaining materials or craftsmen for projects and building work.
Procurement is the general term used for obtaining prices and reaching a point at which a contract can be placed. This can be either for services or goods. Public Procurement is the process put in place in accordance with EU guidelines for fair and non-collusive tendering processes used by public bodies and others regulated by the law in this area.
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Business and Property Courts—shorter trials scheme
Business and Property Courts—shorter trials scheme This Practice Note provides guidance on the interpretation and application of the relevant provisions of the CPR. Depending on the court in which your matter is proceeding, you may also need to be mindful of additional provisions—see further below. Purpose of the shorter trials scheme This Practice Note gives guidance on the shorter trials scheme (STS) in CPR PD 57AB to claims issued on or after 1 October 2015 in the Business and Property Courts. The scheme is intended to effect resolution of commercial disputes within commercial time frames through streamlining and controlling various case management procedures, including the pre-action procedure, statements of case, costs budgeting, disclosure, factual and expert evidence, interim applications, the trial timetable, cross examination at trial, etc. CPR PD 57AB deals with both the shorter and flexible trials schemes and came into effect on 1 October 2018, following a successful pilot scheme which operated under CPR PD 51N in the Rolls Building only. From 1 October 2018, the STS applies to all Business and Property Courts and to claims issued on or after 1 October 2015 (CPR PD 57AB, para 1.2). The flexible trials scheme (FTS) is also contained in CPR PD 57AB. This Practice Note only considers the STS. For guidance on the FTS, see Practice Note: Business and Property Courts—flexible trials scheme. Where the provisions of
An introduction to the World Trade Organization
An introduction to the World Trade Organization What is the World Trade Organization? The World Trade Organization (WTO) provides the institutional and legal framework for trade between Member States. As such it administers the agreements agreed by Member States of the WTO. In addition, it also settles disputes among Member States, monitors Member States’ compliance with the various agreements and functions as a negotiating forum for all manner of trade related issues. The WTO had its inception on 1 January 1995, but its history dates to 1948 when, the General agreement on Tariffs and Trade of 1947 (GATT 1947) was agreed. Over numerous subsequent rounds of negotiations, in 1994, Member States agreed, in Marrakesh, to the Marrakesh Agreement Establishing the World Trade Organization (Marrakesh Agreement). The Marrakesh Agreement established the WTO and provides the institutional and legal framework for the multilateral trading system. There are also four annexes to the Marrakesh Agreement which are complemented by certain decisions and declarations. In total the legal texts consist of over 60 agreements, annexes, decisions, declarations and understandings. Annex 1 to the Marrakesh Agreement is arguably the most important of the annexes since it contains all the current multilateral agreements regulating different aspects of trade. There are three annexes dealing with: • trade in goods (Annex 1a) • trade in services (Annex 1b), and • trade-related aspects of intellectual property rights (Annex 1c) Each of these
Specific public sector equality duties—England
Specific public sector equality duties—England The public sector equality duty (PSED) as defined and set out in Part 11 of the Equality Act 2010 (EqA 2010) comprises: • a general equality duty—the over-arching requirement or substance of the duty, supported by • specific duties that are intended to help performance of the general equality duty For background reading on the PSED, see Practice Note: Public sector equality duty. This Practice Note examines how the specific duties require public bodies to be transparent in how they are addressing the PSED, compelling them to: • publish relevant, proportionate information showing compliance with the PSED, and • set and publish specific, measurable equality objectives It must be remembered that the specific duties do not replace the general PSED. Public bodies subject to the specific duties must comply with the specific duties to assist in overall compliance with the general PSED. The specific duties help to monitor and demonstrate this compliance. Public authorities can thus be held accountable to their service users for their decisions and the equality aims are kept squarely focused in the minds of decision-makers. EqA 2010, s 153 enacts the power to impose, by secondary legislation, specific duties on public authorities exercising public functions in order to demonstrate their compliance with the PSED. EqA 2010, s 153 replaced the previous, far more prescriptive, specific duties made under the former equality statutory instruments which
Eligibility and selection in public procurement—selection criteria
Eligibility and selection in public procurement—selection criteria A contracting authority cannot award a public contract regulated by the Public Contracts Regulations 2015 (PCR 2015), SI 2015/102, without following a public procurement process, which incorporates two distinct stages: • qualification and selection of tenderers, and • evaluation of tenders, submitted by shortlisted tenderers This is the second of two Practice Notes examining the first stage of this process. The first Practice Note looks at mandatory and discretionary exclusion of tenderers from the procurement process, on the basis of criminal convictions, or as a result of circumstances which question their professional honesty, solvency and reliability. See Practice Note: Eligibility and selection in public procurement—exclusion criteria. This Practice Note looks at how to further down‑select tenderers by evaluating their economic strength and technical/professional ability, concluding with a checklist of the key considerations for assessing eligibility. Brexit impact—public procurement The UK public procurement regime derives from EU law, and is therefore impacted by the UK’s withdrawal from the EU and the end of the transition period. For general updates, see: Brexit timeline. For further reading on the impact of Brexit on public procurement, see Practice Note: Brexit—the implications for public procurement. Public procurement reform The UK government has published proposals to reform the English public procurement regime. Should these reforms be enacted, the contents of this Practice Note will be affected. For background reading, see News Analysis: Public
Legal professional privilege in civil proceedings
Legal professional privilege in civil proceedings This Practice Note considers legal professional privilege (LPP), which is made up of legal advice privilege and litigation privilege. It considers the various criteria for both types of LPP including confidentiality of communications, the dominant purpose and legal context of the communications over which privilege is being asserted and to whom the communication has been copied. The question of which country’s law decides whether a document is privileged is answered. The Practice Note looks at the meaning, for the purposes of asserting privilege, of client, legal adviser, legal advice and anticipated litigation. It addresses the various exceptions to privilege (ie circumstances in which privilege will not arise) including the iniquity exception (in circumstances of fraud or crime), where statute overrides privilege, etc. The position on copy documents, collated, selected and extracted documents and translations is also considered. Finally, practical tips on LPP and privilege generally are offered. Legal professional privilege (LPP) (which is often referred to simply as ‘privilege’ in this Practice Note) is an umbrella term encompassing legal advice privilege and litigation privilege. For information on the general principles associated with privilege including the rationale for those principles and the advantage of being able to assert privilege, see Practice Note: Privilege—general principles. Legal advice privilege Legal advice privilege protects from inspection: • confidential • communications • between A (the client or internal agent) and B
Communications outsourcing
Communications outsourcing This Practice Note provides an overview of the types of communications services commonly outsourced and the reasons for outsourcing. Typical outsourcing structures are also explored, together with key provisions, service levels, benchmarking, warranties and additional issues. Communications outsourcing 'Outsourcing' broadly means the contracting out of a business process or function to another party. Examples of functions which might be outsourced include human resources, payroll processing, IT, customer services, finance and accounting. The outsourcing of communications takes many different forms. While there is no legally approved definition, communications outsourcings usually involve the outsourcing of services associated with voice and/or data communications in some form. Such outsourcings can be full outsourcings, involving the outsourcing of a fully functioning private communications network, or managed service outsourcings, or, more specific outsourcings, such as the support and maintenance of telecoms apparatus to data centre outsourcing, or the procurement of the supply of handsets. A regulatory environment Electronic communications is a regulated sector and providers of electronic communication services (ECSs), electronic communication networks (ECNs) and associated facilities are subject to the underpinning regulations. These include regulations which are not specific to the electronic communications sector, as areas such as data privacy, data security, and issues around interception and government investigatory powers are also relevant. See: Telecommunications—overview. Within the EU, there is no longer a system of licensing (except for specified wireless frequencies) and, as such,
UK GDPR—the public sector
UK GDPR—the public sector This Practice Note provides a summary of how the application of the United Kingdom General Data Protection Regulation, Retained Regulation (EU) 2016/679 (UK GDPR) regime differs for ‘public bodies’ (as defined in the UK GDPR and also called ‘public authorities’) and other public sector organisations as compared with private sector organisations. The processing of personal data by competent authorities for law enforcement purposes or by the intelligence services are governed by specific regimes under Parts 3 and 4 of the Data Protection Act 2018 (DPA 2018) and beyond the scope of this Practice Note. For information on the processing of personal data for law enforcement purposes and by the intelligence services, see Practice Note: Processing personal data by law enforcement and intelligence agencies and Information Commissioner’s Office (ICO) Guide to Data Protection, which includes a Guide to Law Enforcement Processing and a Guide to Intelligence Services Processing. This Practice Note does not consider the specialist topics of national security and defence exemptions in detail, since extensive exemptions apply in those niche contexts. For links to further guidance on those exemptions, see the section on Exemptions below. This Practice Note assumes the reader is familiar with key terms under the UK GDPR (which generally have the same meaning regardless of whether private sector or public sector organisations are concerned) including: • data subject • personal data • processing
Public procurement—Ghana—Q&A guide
Public procurement—Ghana—Q&A guide This Practice Note contains a jurisdiction-specific Q&A guide to public procurement in Ghana published as part of the Lexology Getting the Deal Through series by Law Business Research (published: August 2021). Authors: AB & David Law Affiliates—David Ofosu-Dorte; Ferdinand Adadzi; Sena Kpodo 1. What is the relevant legislation regulating the award of public contracts? The main legislation that regulates and governs public procurement and award of public contracts financed from public funds in Ghana is the Public Procurement Act 2003 (Act No. 663) (the Act) as amended by the Public Procurement (Amendment) Act 2016 (Act 914) (the Amendment Act). The promulgation of the Act was an integral part of Ghana's Public Financial Management Reforms and good governance initiative, which sought to instil propriety and accountability in public sector financial management and expenditure. The Act regulates the procurement of goods, works and services financed, in whole or in part, from public funds and the disposal of government stores. All government agencies, institutions and establishments in which the government has a majority interest are mandated to comply with the Act. The key exceptions to which the scope of application of the Act is subject are in respect of the following; • procurement with international obligations arising from a grant or concessionary loan to government which shall be in accordance with the terms of the grant or loan subject to
Public procurement—innovation partnership procedure
Public procurement—innovation partnership procedure Brexit impact—public procurement The changes to the PCR 2015 arising as a result of Brexit have been made by the Public Procurement (Amendment etc.) (EU Exit) Regulations 2020 and the Public Procurement (Agreement on Government Procurement) (Amendment) Regulations 2021. Further, the ability to diverge from EU law, and governmental proposals for reform of the UK public procurement regime, indicate that considerable changes are expected in policy and legislation. This Practice Note contains guidance on subjects impacted by these changes. Before continuing your research, see Practice Note: What does IP completion day mean for public law? and Q&A: What is the impact of the UK’s withdrawal from the EU on public procurement laws? Public procurement under the Public Contracts Regulations 2015 A contracting authority must use one of the five permitted procurement procedures set out in the PCR 2015 unless an exemption applies, such as where the value of the contract is below the relevant financial threshold. For background reading on public contracts , see Practice Note: Introduction to public contracts procurement. Public procurement procedures—legal background The innovation partnership procedure is a procedure introduced under the EU Public Contracts Directive as implemented via the PCR 2015. In this context, the term 'partnership' is not used in a legal sense (such as LLPs, partnerships or limited partnerships) and should be distinguished from European Innovation Partnerships (EIPs). The aim of the innovation
Defence and security procurement—Mexico—Q&A guide [Archived, 2021 edition]
Defence and security procurement—Mexico—Q&A guide [Archived, 2021 edition] This Practice Note contains a jurisdiction-specific Q&A guide to defence and security procurement in Mexico published as part of the Lexology Getting the Deal Through series by Law Business Research (published: February 2021). Authors: Santamarina y Steta SC—Sergio Chagoya D.; José Antonio López González 1. What statutes or regulations govern procurement of defence and security articles? Article 134 of the Mexican Constitution provides the general principles for public procurement in Mexico at the federal and state levels. The Law of Acquisitions, Leases and Services of the Public Sector (the Public Procurement Law), together with its ruling (the Regulation of the Public Procurement Law) comprise the main legal framework under which all federal public procurement for defence and security matters are regulated, and detail the general constitutional principles. At the local level, procurement for security goods and equipment is regulated in state and municipality's public procurement legal framework, all of which contain somewhat similar provisions to those contained in the Public Procurement Law and its ruling. 2. How are defence and security procurements identified as such and are they treated differently from civil procurements? Defence and security procurements are identified as cases where the exceptional procedure under article 41, subsection IV of the Public Procurement Law is to be used. Owing to their special status, they are treated differently from standard civil procurements in
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Systems integration agreement—pro-supplier
Systems integration agreement—pro-supplier This AgrEement is made on [date] Parties 1 [insert name of supplier], a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at [insert address] (Supplier); and 2 [insert name of customer], a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at [insert address] (Customer) (each of the Supplier and the Customer being a party and together the Supplier and the Customer are the parties). Background (A) The Customer wishes to procure software, [hardware], software configuration and development services, installation services and other related services. (B) The Customer has agreed to procure the Services from the Supplier and the Supplier has agreed to provide the Services to the Customer on the terms and conditions of this Agreement. The parties agree as follows: 1 Definitions and Interpretation 1.1 In this Agreement the following terms have the following meanings: Acceptance • means that: (a) the Customer confirms in writing that the Software has passed or is deemed to have passed the relevant Software Acceptance Tests; and/or (b) the Supplier confirms in writing that the Supplied Hardware has passed or is deemed to have passed the relevant Hardware Acceptance Tests, as the context so requires, and Accept shall be construed accordingly; Acceptance Criteria • means the criteria to be satisfied to demonstrate that: (a) the Software Acceptance Tests have been successfully completed as determined pursuant to
Green supplier agreement terms clause (The Chancery Lane Project)
Green supplier agreement terms clause (The Chancery Lane Project) Additional definitions Carbon Footprint Standards • means, for Organisational Carbon Footprints and Supply Chain Carbon Footprints, the [eg GHG Protocol Corporate Accounting and Reporting Standard, GHG Protocol Corporate Value Chain (Scope 3) Accounting and Reporting Standard, ISO 14064] and for Product Carbon Footprints, the [eg GHG Protocol Product Life Cycle Accounting and Reporting Standard, ISO 14064]; GHG Emissions • means [the parties’] emissions of the GHGs from all sources [related to the agreement] categorised as Scope 1, 2 and 3 Emissions by The Greenhouse Gas Protocol: A Corporate Accounting and Reporting Standard, Revised Edition 2015 as updated from time to time; GHG Report • means a report prepared by the Supplier in accordance with the requirements set out in clause 4; Greenhouse Gases (GHGs) • means the natural and anthropogenic gases which trap thermal radiation in the Earth’s atmosphere as specified in Annex A to the Kyoto Protocol to the United Nations Framework Convention on Climate Change (UNFCCC)[ or otherwise specified by the UNFCCC at the date of this agreement], as may be amended from time to time[ which include carbon dioxide (CO2), methane (CH4), nitrous oxide (N20), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), sulphur hexafluoride (SF6), and nitrogen trifluoride (NF3)] each expressed as a total in units of CO2e; Product Carbon Footprint • means total GHG Emissions over the whole life of the Supplied Products, from the extraction
Impromptu contract audit meeting questions
Impromptu contract audit meeting questions 1 Goods/services What types of goods and services are procured in your area/department? Where can I get a list? 2 Contracting process What contracting process is used? Where can I get a contracting process workflow diagram? 3 Roles and responsibilities Who does what in your area/department in the contract lifecycle process? Where can I get a roles and responsibilities workflow diagram? 4 Use of processes Does your area/department use the
Risk management—code of ethics
Risk management—code of ethics Risk is part of everything we do. Managing risk improves the way we deliver our business and plays a key role in helping us achieve our strategic objectives and avoid unwelcome surprises. Good risk management should be an integral part of everyday business. Risk is not easily defined but generally it is the possibility of an adverse or unwelcome outcome. This could be a financial loss but it could also be something less quantifiable, such as damage to [insert organisation's name]’s reputation. Risk management is not about avoiding risk or being risk averse (it is often said that the reward for risk is profit), nor should it be performed simply as a tick box compliance activity. We encourage innovation
Legal services register
Legal services register This Precedent is intended for in-house lawyers. It can be used to record what legal services are sourced externally, from which suppliers and at what cost. It also includes tabs for recording key areas of legal risk and strategy that may be relevant to outsourcing legal services. This will help you determine which legal services to outsource or to continue outsourcing and formulate an outsourcing strategy—see Precedent: Legal services outsourcing strategy. This Precedent legal services register has been prepared in Excel and it therefore cannot be downloaded to Word. It has been pre-populated with some sample entries, for illustrative purposes. These should be deleted. The Precedent register is intended to be populated by information obtained as a result of meetings with key stakeholders, such as the board, other
Improving efficiency business case (worked example)
Improving efficiency business case (worked example) Executive summary This report analyses why 25% of the referrals we receive are referred back to client services. The research was conducted in May and June 2021 and includes statistical data gathered from various sources. The research was conducted by a cross-party team of lawyers and support staff headed up by Fred Smith. The aim was to identify current bottlenecks in the process, what was causing them and how they could be fixed. The main recommendations of the report are: • standardised email signatures for all employees, containing direct contact information • a review of all standard letters currently sent to clients • development of a standard script for administrative assistants when speaking with new/potential clients • a review of our current mobile phone provider and a potential move to a new provider The full details of these recommendations can be found below. Should the recommendations be accepted, initial roll-out can begin within two weeks. What is the problem and what does it cost? The issue Delays at the start of new client process resulting in complaints and an impact on the credibility of the team. Impact We refer 25% of all initial referrals back to client services. The impact on the department is as follows:—in both cases the initial a backlog in the process with the time taken to investigate the conflict of interest
Legal services outsourcing meeting—agenda and meeting plan—procurement director
Legal services outsourcing meeting—agenda and meeting plan—procurement director Agenda item Supporting documentation (to be provided before or after meeting) Comment or action 1. Purpose of the meeting and objectivesState what you need from the meeting and why, eg: —ensure legal resource meets the needs of the organisation —understand the possibility of outsourcing some legal services or reducing spend on external legal support —assess history of use of external legal advisers (who, cost, quality etc) —be informed about the types and volumes of legal support the organisation will require in future [Insert your initials] 2. Strategy and projectsAsk: —what changes have been made to the procurement department over the past five years? —which legal advisers acted for the organisation on those changes, who appointed them, why were they chosen, who managed them and what did they advise on, eg contractual matters, purchase orders, terms and conditions, sourcing strategy, etc? —is any change or restructuring anticipated in the next five years? —is any part of the procurement function outsourced? —which legal advisers acted on the outsourcing, who appointed them etc? —are any advisers acting for the procurement department at the moment? —which advisers, who appointed them etc? Copies of documentation explaining:—changes to the procurement department over the past five years—anticipated changes to the procurement department—outsourcing arrangements—engagement letters [Insert interviewee’s initials] 3. Key contractsAsk: —which legal advisers have historically acted for the procurement
Trade sanctions policy
Trade sanctions policy 1 Introduction This Trade sanctions policy is designed to ensure we comply with applicable trade sanctions and export controls laws [across every jurisdiction in which we operate]. 2 What are trade sanctions? 2.1 The UK uses sanctions to fulfil a range of purposes, including supporting foreign policy and national security objectives, as well as maintaining international peace and security, and preventing terrorism. 2.2 UK sanctions regimes apply under the Sanctions and Anti-Money Laundering Act 2018 (SAMLA 2018). These regimes apply to the whole of the UK, including Northern Ireland. 2.3 EU sanctions legislation no longer applies directly in the UK. 2.4 Trade sanctions impose either a prohibition or a licensing requirement on the sale, supply, transfer, export or import of specified items (goods, software, technology, related technical assistance, services and financing) to or from a specified country. 2.5 The purpose of these controls is to limit the supply of certain goods and technology or strategic goods to countries proscribed, usually for reasons of security, or terrorism. They typically target: 2.5.1 military items—in the UK, this is interpreted as everything on the UK Military List; 2.5.2 a ban on exporting equipment that might be used for internal repression; 2.5.3 financial sanctions on individuals in government, government bodies and associated companies, or terrorist groups and individuals associated with those groups[—see our separate Financial sanctions policy at Appendix 2]; 2.5.4 dual-use items—specified in an annex to
Anti-bribery and corruption—charitable and political donations FAQs
Anti-bribery and corruption—charitable and political donations FAQs We run our business[es] with integrity. All of us must work together to ensure our business[es] remain[s] untainted by bribery and corruption. This FAQ document, which is integral to that effort, guides us on how we can best achieve our business goals in a way that is consistent with our commitment to counter bribery and corruption. What are charitable donations? A charitable donation is a gift made by an individual or company to a non-profit organisation or charity. A charity means any body of persons or trust established for charitable purposes only. A charitable donation can include giving or providing cash, venues, equipment, personnel time or other benefit to a charity or to an individual or organisation nominated by or connected with a charity. Most charities have no connection with politics and no decision making role or influence over procurement decisions, and so there is minimal risk that a charitable donation to them could be corrupt or perceived to be corrupt. Indeed, many organisations see charitable giving as an important part of their corporate social responsibility efforts. Charitable donations do still carry risk, however; they can be a conduit for corrupt payments, eg a government official in negotiations with a business may disclose that they are on the board of a charitable organisation and request a donation be made to the charity, or a charity
Schedule of services—Structural Engineer (traditional procurement)
Schedule of services—Structural Engineer (traditional procurement) Schedule of services—structural engineer (traditional procurement) The Consultant shall: General responsibilities (Stages 0–7) • [act as Lead Consultant in relation to the Project, which shall include: • advising in relation to the scopes of services for other members of the Design Team • advising on the need for other specialist consultants that may be required to complete the Project (and their scopes of services) • directing other consultants forming the Design Team • co-ordinating and integrating the design of the Project as a whole • arranging and chairing regular design meetings to facilitate the conduct of the Project and ensure that minutes are taken and circulated afterwards • facilitating communication between the Client and the Design Team] • [perform services as Principal Designer for the purposes of the Construction (Design and Management) Regulations 2015 to ensure best practice at all times in respect of safety in design OR interact and liaise as required with the Principal Designer and ensure best practice at all times in respect of safety in design] • receive the Client’s instructions and information relating to the Project • [liaise and co-operate with the Lead Consultant] • liaise and co-operate with other members of the Design Team • develop design within the cost parameters of the Project • prepare and/or review drawings and specifications as may be required • provide, agree and review with the Client on a regular basis a deliverables
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Can an order for committal (further to contempt of court) issued by a foreign court be enforced in England and Wales?
Can an order for committal (further to contempt of court) issued by a foreign court be enforced in England and Wales? The Administration of Justice Act 1920 (AJA 1920) makes provision for the registration and thereafter enforcement within the United Kingdom of judgments obtained in a superior court of any part of the Commonwealth. The Foreign Judgments (Reciprocal Enforcement) Act 1933 extends the registration system to foreign countries generally. Procedurally, such registration and enforcement is dealt with by CPR 74.1. Pursuant to CPR 74.2(1)(c), 'judgment' means any judgment given by a foreign court or tribunal, whatever it may be called, including an order. However, AJA 1920, s 12(1) makes clear that the expression 'judgment' for the purposes of AJA 1920 means 'any judgment or order given or made by a court in any civil proceedings, whether before or after the passing of this Act, whereby any sum of money is made payable…'. This includes a 'judgment on a judgment' (see Strategic Technologies PTE Ltd v Procurement Bureau of the Republic of China
Can call-off agreement under a framework agreement be awarded on different terms to those set out in the original framework? If a tenderer marks-up the call-off terms at mini-competition stage, could the contract be awarded and entered into based on the mark-up?
Can call-off agreement under a framework agreement be awarded on different terms to those set out in the original framework? If a tenderer marks-up the call-off terms at mini-competition stage, could the contract be awarded and entered into based on the mark-up? Framework agreements can be set up in a variety of ways under the Public Contracts Regulations 2015, SI 2015/102 (PCR 2015, SI 2015/102). However, PCR 2015, SI 2015/102, reg 33(6) states: ‘Contracts based on a framework agreement may under no circumstances entail substantial modifications to the terms laid down in that framework agreement’ The latitude afforded to the contracting authorities will be set out in the relevant framework agreement itself. Some will allow mini-competitions and variations of certain terms in certain circumstances, some will not. Individual assessment and advice on each framework agreement should be considered. It is possible for a framework agreement to be set up in such a way that there is flexibility in relation to both the way a mini-competition can be run under the framework agreement and the call-off terms that apply. However, many frameworks are set up to apply a much firmer approach in how both mini-competitions can be run and the call-off terms that will apply―in order to try and ensure that call-offs under the framework agreement are PCR 2015, SI 2015/102 compliant. The particular framework agreement will need to
Are there any restrictions on the amount a contracting authority's may invoice (a management fee/charge) a supplier appointed to a framework for managing that framework?
Are there any restrictions on the amount a contracting authority's may invoice (a management fee/charge) a supplier appointed to a framework for managing that framework? Public Contracts Regulations 2015 (PCR 2015), SI 2015/102, reg 33(2) defines a framework agreement as: ‘an agreement between one or more contracting authorities and one or more economic operators, the purpose of which is to establish the terms governing contracts to be awarded during a given period, in particular with regard to price and, where appropriate, the quantity envisaged.’ The Crown Commercial Service (CCS) guidance on framework agreements provides the following interpretation: ‘a framework agreement is a general phrase for agreements with providers that set out terms and conditions under which agreements for specific purchases (known as call-off contracts) can be made throughout the term of the agreement. In most cases a framework agreement will not itself commit either party to purchase or supply, but the procurement to establish a framework agreement is subject to the EU procurement rules.’ Further guidance on the use of framework agreements and the public procurement regime more generally is available in the following Practice Notes: • Introduction to public contracts
What is the interrelationship between regulations 20 and 77 of the Public Contract Regulations 2015?
What is the interrelationship between regulations 20 and 77 of the Public Contract Regulations 2015? Reservation of contracts Regulations 20 and 77 of the Public Contract Regulations 2015, SI 2015/102 (PCR 2015), concern the reservation of contracts. These provisions allow authorities to reserve contract opportunities for certain types of supplier in order to allow the contracting authority to further their objectives in social, health and other policies. PCR 2015, reg 20 states: '(1) Contracting authorities may (a) reserve the right to participate in public procurement procedures to sheltered workshops and economic operators whose main aim is the social and professional integration of disabled or disadvantaged persons, or (b) provide for such contracts to be performed in the context of sheltered employment programmes, provided that at least 30% of the employees of those workshops, economic operators or programmes are disabled or disadvantaged workers' Reg 20 focuses on opportunities for the social and professional integration of disadvantaged or disabled workers and allows the contracting authority to restrict the process to bids from organisations meeting the relevant criteria. Reg 20 reflects an extension of the provisions for reserved contracts under the Public Contracts Regulations 2006, SI 2006/5 (which were replaced by PCR 2015, based on Directive 2014/24/EU, the Public Contracts Directive). It falls within PCR 2015 Pt 2, ch 2 and allows contracting authorities to limit the right to participate in certain public procurement procedures, as
Is a voluntary transparency notice published in the OJEU? How in practice is this distinguished from the OJEU notices that are published in advance of a procurement process?
Is a voluntary transparency notice published in the OJEU? How in practice is this distinguished from the OJEU notices that are published in advance of a procurement process? For the purposes of this Q&A we have focused on the rules and procedure concerning voluntary transparency notices under the Public Contracts Regulations 2015, SI 2015/102. For public contracts subject to the Public Contracts Regulations 2015, SI 2015/102, the requirements for publishing contract notices in the Official Journal of the European Union (OJEU) in accordance with the rules of procedure are set out in the Public Contracts Regulations 2015, SI 2015/102, Pt 2 (see in particular regs 48 to 52). A voluntary transparency notice (also known as a ‘voluntary ex ante transparency notice’ or ‘VEAT notice’) is used in limited circumstances arising under the Public Contracts Regulations 2015, SI 2015/102, Pt 3. A voluntary transparency notice may be published by a contracting authority where a contract has been awarded without prior publication of a contract notice in accordance with the Public Contracts Regulations 2015, SI 2015/102, Pt 2 (ie a direct award). A contracting authority may opt to publish a voluntary transparency notice in these circumstances in order to resist challenge on grounds of ineffectiveness under the Public Contracts Regulations 2015, SI 2015/102, reg 99(2). The Public Contracts Regulations 2015, SI 2015/102, reg 99(3) provides that the above ground for
What are the requirements for the award of a contract under a dynamic purchasing system under the Public Contracts Regulations 2015? In particular, what are the requirements applicable to the supplier when accepting an award?
What are the requirements for the award of a contract under a dynamic purchasing system under the Public Contracts Regulations 2015? In particular, what are the requirements applicable to the supplier when accepting an award? The law Regulation 34 of the Public Contracts Regulations (SI 2015/102) (PCR 2015) (PCR 2015, SI 2015/102, reg 34) allows a contracting authority to procure a public contract through a dynamic purchasing system (DPS). PCR 2015, SI 2015/102, reg 34(1) provides that a DPS can be used by a contacting authority to procure commonly used goods and services which are generally available on the market and which the authority requires to meet its needs. An example might be an annual supply of stationery requisites. Procurement through a DPS is operated completely electronically (PCR 2015, SI 2015/102, reg 34(2)). This means that a DPS is a flexible procurement system. For example, under a DPS new provides can be admitted to the system during its operation. This contrasts with procurement under a framework agreement, where provides are fixed at the time the agreement is established. A DPS is a two-stage process involving an initial procurement/qualification stage followed by individual call-offs―similar to framework agreement, but with distinct procedural differences under the PCR 2015. For instance, suppliers can apply to join at any time while the DPS is still valid and all suppliers who qualify must be admitted
Do you have a straight forward contract for building works between a contractor and home owner?
Do you have a straight forward contract for building works between a contractor and home owner? We do not have a precedent contract in Lexis®PSL Construction that would suit these purposes. We suggest that an appropriate form of contract to use in these circumstances would be either: • JCT
What is the Joint Fire Code referred to in JCT contracts and when does it apply?
What is the Joint Fire Code referred to in JCT contracts and when does it apply? The publication known as the ‘Joint Fire Code’ provides guidance on fire prevention on construction sites. It applies to all parties involved in the supply chain, including those responsible for construction on site, as well as those who specify and design. The full title of the Joint Fire Code is ‘Fire Prevention on Construction Sites: The Joint Code of Practice on the Protection from Fire of Construction Sites and Buildings Undergoing Renovation’. It is produced by the insurance and construction industries together and compliance with the code is normally required by insurers for larger construction projects. The objective of the Joint Fire Code is to prevent fires on construction sites. It can be purchased in hard copy form from the Fire Prevention Association, RIBA and others. The Joint Fire Code was first published in 1992 and the most recent edition (the 9th edition) was published in 2015. It was first published following two fires which caused a combined loss of more than £150m and which led to the insurance industry questioning whether it was economically viable to continue to insure construction projects. Since its publication, it has helped to improve standards of fire safety on construction sites. The Joint Fire Code sets out precautions and safe working practices that should be adopted
Are there any government approved standard GDPR compliant data processing clauses for use by public authorities?
Are there any government approved standard GDPR compliant data processing clauses for use by public authorities? The General Data Protection Regulation (EU) 2016/679, the GDPR, will replace Directive 95/46/EC, Data Protection Directive and all implementing data protection legislation in EU Member States, including the UK’s Data Protection Act 1998 (DPA 1998) from 25 May 2018. The GDPR will be directly applicable in all Member States without the need for implementing national legislation. See Practice Note: Introduction to the EU GDPR and UK GDPR. This Q&A considers the generic standard GDPR clauses found in Annex A, Part 1 of the Procurement Policy Note—Changes to Data Protection Legislation & General Data Protection Regulation (PPN 03/17) issued by the Crown Commercial Service. Background In December 2017, the Crown Commercial Service published PPN 03/17, a public procurement note which explains how government buyers should bring existing and future commercial arrangements concerning data processing into line with the GDPR and the Data Protection Law Enforcement Directive (EU) 2016/680 (DPLED). See LNB News 20/12/2017 117. PPN 03/17 includes
Can a public contract that has expired be extended if it contained a provision for extension?
Can a public contract that has expired be extended if it contained a provision for extension? Contracts governed by the Public Contracts Regulations 2015 (PCR 2015), SI 2015/102, often envisage a service arrangement that will last over a period of time and, because of that, the contract may contain sophisticated mechanisms by which various categories of change can be effected during the contractual term. This may include extensive clauses in relation to the extension of the contract. Whether the expired contract can be extended depends on the extension clause in question. If, for example, the clause provided that the contract could be extended after its expiration, the contract could be extended in accordance with PCR 2015, SI 2015/102. The relevant provision of PCR 2015, SI 2015/102, reg 72 sets out a comprehensive set of principles that will determine when a contract or framework agreement may be modified without a new procurement and when a new procurement procedure will be required. PCR 2015, SI 2015/102, reg 72(1)(a) has the effect of permitting a modification of the original contract so long as the modification was: ‘...provided for in the initial procurement documents in clear, precise and unequivocal review clauses, which state the scope and nature of possible modifications or options as well as the conditions under which they may be used, and do not provide for modifications or options that
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Commercial weekly highlights—30 June 2022
This week's edition of Commercial weekly highlights includes: news of the Court of Appeal judgment in Credico Marketing Ltd v Lambert and others which allowed the appeal in part against the QBD court’s earlier decision that the restrictive covenants in the appellant’s trading agreement with the respondent marketing organisation were enforceable, analysis of the Commercial Court judgment in Gama Aviation (UK) Ltd v MWWMMWM Ltd which upheld the novation of the agreement between the parties, analysis of the Advocate General’s opinion in Rigall Arteria Management v Bank Handlowy w Warszawie concerning an agent’s entitlement to commission on repeat transactions, and analysis of the Commercial Court decision in AIG Europe SA v John Wood Group which upheld an exclusive jurisdiction clause in an insurance contract.
Environment weekly highlights—30 June 2022
This week's edition of Environment weekly highlights includes analysis on the challenge to Southampton airport expansion project being rejected. In addition, this week the Climate Change Committee published its 2022 progress report on emissions reduction to Parliament, an agreement has been reached on modernising the Energy Charter Treaty, the UK signed up to the Sustainable Productivity Growth Coalition, the Taskforce on Nature-related Finance Disclosures released version 2 of the beta framework for nature-related risk and opportunity management and disclosure, and the Committee on Transport and Tourism of the European Parliament adopted a draft negotiating mandate on the ReFuelEU aviation rules. We have also published a new Practice Note which details the key Environment resources available in Lexis®Library.
EU Law weekly highlights—30 June 2022
This week's edition of EU Law weekly highlights includes the EU launching legal action against the UK, following the government’s publication of its Northern Ireland Protocol Bill on 13 June 2022, the Court of Justice considering the arbitration exception set out in Regulation 44/2001, Brussels I, the Council of the EU adopting regulations on gas storage and the Council of the EU and the European Parliament adopting their position on legislative proposals under the ‘Fit for 55’ package. The highlights further include the Energy Charter Conference reaching an agreement in principle on the reform of the Energy Charter Treaty and the Competition Act 1998 (Vertical Agreements Block Exemption) Order and EU Vertical Restraints Block Exemption, Regulation 2022/720, each in force 1 June 2022, having taken different positions on the treatment of the typical restrictions seen in franchise agreements.
Public Law weekly highlights—30 June 2022
This week's edition of Public Law weekly highlights includes the latest updates on the conflict in Ukraine and the sanctions against the Russian state. Coronavirus (COVID-19) updates include the publication of the terms of reference for the public inquiry into the pandemic. Also featured are selected Brexit headlines, including analysis of the EU's launch of infringement proceedings against the UK over compliance with the Northern Ireland Protocol; the Cabinet Office's retained EU law (REUL) dashboard; updates on the second meetings of the Specialised Committees on Air Transport and Social Security Coordination; progress on the UK's international trade priorities, as well as the latest post-Brexit guidance, legislation and SIs. Also in this edition, analysis of the Bill of Rights Bill and the Procurement Bill; the Courts and Tribunals Judiciary's guidance on the use of the Administrative Court; the Cabinet Office's guidance on declaration and management of outside interests in the Civil Service, plus additional updates on constitutional and administrative law, judicial review, equality and human rights, public procurement, subsidy control and state aid. Case analysis this week includes the Administrative Court's ruling on the scope of rights protected under Article 8 of the European Convention on Human Rights (ECHR) in extradition proceedings.
Banking and Finance weekly highlights—30 June 2022
This week's edition of Banking and Finance weekly highlights includes: (1) News analysis on the first NSIA 2021 Annual Report for 2022 published by BEIS, (2) the European Money Markets Institute announces adjustments to EURIBOR hybrid methodology following annual review, and (3) Companies House announces secondary legislation for the Register of Overseas Entities.
Local Government weekly highlights—30 June 2022
This week's edition of Local Government weekly highlights includes case analysis of Piffs Elm Ltd v Commission for Local Administration in England confirming the LGO’s implied power to withdraw reports and Mayor and Burgesses of the Tower Hamlets LBC v Khan on recovery of contractual costs in relation to forfeiture clauses; plus analysis on the Bill of Rights Bill and the significant changes to the UK human rights framework, analyses on the Public Procurement Bill in relation to its impact on challenges and remedies for suppliers and public authorities and on contract change and analysis of the final version of the Department of Health and Social Care’s (DHSC) data strategy. The weekly highlights also includes further updates on the Ukraine conflict, governance, public procurement, local government finance, education, children’s social care, social care, healthcare, social housing, planning, highways and coronavirus (COVID-19).
The Procurement Bill: contract change—some good stuff but opportunities missed?
Public Law analysis: Changes to contracts during their term is one of the most fundamental issues in procurement law. The Procurement Bill (the Bill) aims to update the rules to align the law more closely to the reality in which these contracts operate. In this analysis, Jonathan Davey and Jack Doukov-Eustice of Addleshaw Goddard LLP look at the rules, which allow a contract to be modified without creating a new contract. As those used to dealing with procurement law will know, if a contract is substantially modified then that is treated as if a new contract had been awarded. What are the changes and what impact is this likely to have on everyday activity?
Brexit highlights—24 June 2022
These Brexit highlights bring you a summary of the latest Brexit news and legislation updates from across a range of LexisNexis® practice areas.
Environment weekly highlights—23 June 2022
This week's edition of Environment weekly highlights includes analysis on the announcement that trustees of large occupational pension schemes will be required to publicly disclose the way their investments are aligned with international standards on limiting global warming and the Department for Work and Pensions’ green pensions trial. In addition, this week, the Department for Business, Energy & Industrial Strategy published its response to the consultations on heat network zoning, cost recovery of heat networks regulation, and fusion energy proposals, the Chancery Lane Project published three new clauses for soils, renewable power and SMEs, the Scottish Government launched a consultation on its Biodiversity Strategy, it was confirmed that COP15 will go ahead in December 2022, and the Global Methane Pledge Energy Pathway was signed by the EU, the US and 11 other countries. We also published a new Practice Note, which provides guidance on the obligations imposed on manufacturers, importers and authorised representatives by GB ecodesign legislation.
Banking and Finance weekly highlights—23 June 2022
This week's edition of Banking and Finance weekly highlights includes: (1) the LMA updates its REF Security Agreements and user guides, (2) the publication of the annual report for 2022 on the implementation of the National Security and Investment Act 2021, and (3) the Council of the EU and the European Parliament have reached provisional agreement on the EU’s Corporate Sustainability Reporting Directive (CSRD).
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