Q&As

Is there any guidance on how the courts treat key performance indicators set by public authorities in contracts tendered under the EU public procurement rules?

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Published on LexisPSL on 19/03/2019

The following Public Law Q&A provides comprehensive and up to date legal information covering:

  • Is there any guidance on how the courts treat key performance indicators set by public authorities in contracts tendered under the EU public procurement rules?
  • KPIs in public sector contracts
  • EU public procurement regime
  • Preparing procurement documents
  • Outsourcing playbook guidance on KPIs
  • EU guidance on public contract implementation
  • Further Q&As on public sector frameworks

This Q&A only considers the position regarding an above-threshold public contract tendered under the Public Contracts Regulations (PCR 2015), SI 2015/102.

KPIs in public sector contracts

In the first instance, we refer you to the following cases which discuss the role of key performance indicators (KPIs) within contracts involving public authorities:

  1. BT Cornwall Ltd v Cornwall Council involved a contract claim for a material breach by the outsourced company, evidence of which was provided by a fallen KPI performance. The case discussed the availability of early termination in outsourcing contracts where they are not fulfilling their KPIs. See News Analysis: When outsourcing contracts don’t deliver

  2. Sutton Housing Partnership Ltd v Rydon Maintenance Ltd concerned a contract tendered between a housing partnership for the London Borough of Sutton and a company to provide repair and maintenance works. This discussed how KPIs can be amended or determined and the corresponding effect on level of performance of the contract. See News Analysis: Example performance levels in contract were binding (Sutton v Rydon)

See also News Analysis: Competing for public contracts—invitation to tender or retreat? which discusses performance and performance measurement in public sector contracts, particularly in the context of termination.

EU public procurement regime

The EU public procurement regime regulates the tendering and award of contracts by public authorities. Whether compliance is brought into question by particular performance requirements specified in the

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