Welcome to the weekly Construction highlights from the Lexis®PSL Construction team for the week ending 4 February 2016. This week’s edition of Construction highlights includes analysis of Commercial Management v Mitchell Design and Regorco, where the TCC considered whether a limitation clause had been incorporated into a subcontract, and of J Browne Construction v Chapman Construction, in which a contractor argued that subcontractor labour costs had been claimed fraudulently. We also take a look at Counted4 Community Interest v Sunderland City Council, in which the TCC applied the American Cyanamid principles to reg 96(1) of the Public Contracts Regulations 2015. This week’s news also sees an update from JCT of the main changes featured in the new 2016 Edition of contracts, which is due to be published later this year, and the results of a RIBA survey, which found NEC3 to be the most favoured form of contract.

The Joint Contracts Tribunal (JCT) has released the 2024 editions of its Major Project Construction Contract (MP), Prime Cost Building Contract (PCC), Constructing Excellence Contract (CE), alongside associated sub-contracts and guides. Reference copies of all contracts will shortly be available on Lexis+® Construction, under the Standard form construction contracts sub-topic ‘JCT contracts 2024'.

The Public Contract Regulations 2015 (PCR 2015), SI 2015/102, reg 57(1) requires contracting authorities to exclude an economic operator from participation in a procurement procedure where that operator has been convicted of any one of a number of specified offences. The particular offences that give rise to mandatory exclusion are laid out in PCR 2015, SI 2015/102, reg 57(1)(a)–(m) and include: • conspiracy • corruption • bribery • fraud affecting the European Communities’ interests • terrorism offences • modern slavery offences, and • money laundering A conviction for a breach of health and safety law does not fall within any of these categories of offences giving rise to mandatory exclusion. However, under PCR 2015, SI 2015/102, reg 57(8) contracting authorities may also exclude an economic operator from a procurement procedure: ‘where the contracting authority can demonstrate by any appropriate means a violation of applicable obligations referred to in PCR 2015,

This Practice Note provides practical guidance on how to execute documents properly when one or more parties to a contract are not physically present. This is sometimes known as virtual signing or virtual closing. The Law Society has brought together a variety of established guidance on execution of documents by virtual means, execution of documents using electronic signatures, its ‘Tips on how to operate in practice’ in relation to virtual execution and the use of e-signatures, and Q&A on how to use electronic signatures and complete virtual executions: Our position on the use of virtual execution and e-signature during the coronavirus (COVID-19) pandemic. We have produced a collection that is a comprehensive, interactive resource to help users identify and work through the concepts and common issues when executing documents, including when executing documents by virtual means. Each section or phase includes practical guidance, precedent clauses and Q&As relevant to that section. For more information, see: Execution collection. Mercury Tax Case This guidance is consistent with the Law Society's guidance, made on 16 February 2010 in response to the decision

[ In the county court at [insert] OR In the High Court of Justice ] [ [Specify division] ] [ [Specify Specialist court] ] [ [Insert location] District Registry ] Claim No. [insert claim number] Between [Insert name and details of the Claimant]        Claimant -and- [Insert name and details of the Defendant]        Defendant __________________________________ Particulars of claim __________________________________ 1 At all material times, the Claimant was employed by the Defendant as a [insert Claimant’s job title and location eg mail sorter at its Islington office] and acting in the course of [his OR her] employment. The Claimant’s employment commenced on [insert date]. At all material times, the Claimant’s line manager was [insert name of Claimant’s line manager, eg Mr Bloggs]. [Mr Bloggs’] line manager was [insert name, eg Mr Jones]. The Defendant’s Managing Director was [insert name, eg, Mr Smith]. 2 The Defendant owed the Claimant the following duties in tort and/or contract: 2.1 a duty to take reasonable care of the Claimant’s health and safety, which included employing competent fellow workers; and/or 2.2 a duty to take reasonable care to prevent the Claimant from suffering foreseeable psychiatric injury in the course of or as a result of [his OR her] employment,

Local Government analysis: This must read case concerned a challenge to a public procurement exercise concerning waste collection services in the National Health Service (NHS). SRCL ltd, (SRCL) alleged that the winning bid was abnormally low and that the NHS had wrongly encouraged bidders to submit prices on the basis that TUPE 2006 regulations would not apply. The court dismissed the challenge and was critical of SRCL for various reasons. The court gave useful guidance on public procurement challenges including on the application of the limitation period and the court’s role on the question of whether a bid is abnormally low. Written by Alexander Campbell, barrister at Field Court Chambers.

Where the employer has a written policy on external statements, refer to it and ensure it is consistent with this clause. The employer should in any event have in place approval procedures, so that decisions about public statements are taken by the appropriate manager(s), and are as consistent as possible. 1 Public statements 1.1 You shall not at any time after the termination of your employment represent yourself as being interested in or employed by or in any way connected with the Employer[ or any Group Company] or its[ or their] business[es] or use the name of the Employer[ or any Group Company] (or any similar name) in connection with any business. Clause 1.2 Consider who is the appropriate senior person to take clearance decisions. The same issue should be considered in relation to clause 1.3.1 (statements to the media) below. 1.2 During your employment, you shall obtain prior clearance from the Employer's [head of media relations]: 1.2.1 before

Introduction: Stair Memorial Encyclopaedia [269] defines a promissory note as: 'an unconditional promise in writing made by one person to another signed by the maker, engaging to pay, on demand or

The following case provides an interesting example of an insurance provider challenging a public procurement process: Brent London Borough Council (Harrow London Borough Council) v Risk Management Partners Ltd. You will find details of this case in Practice Note: Public procurement key cases—procurement procedure [Archived]. This case concerned a public procurement challenge in relation to a tender for the provision of insurance services. The claimant, a commercial insurer, brought proceedings against the defendant local authority challenging arrangements made for entering contracts of insurance with a mutual insurer in co-operation with other local authorities. The claimant challenged the arrangements on the basis that they were ultra vires and non-compliant with the Public Contracts

A set-off is the right of one party, Party A, who is owed money by another party, Party B, to ensure payment by setting off the amount owed to Party A through a reduction of Party A’s liability to Party B under a separate dealing. Thus, where a creditor and a debtor have had mutual dealings, the creditor is entitled to set-off against the debt which they are owed any sum which they owe to the debtor. See Practice Note: What is set-off and when is it available? Contractual set-off is one of the five main types of set-off described in Practice Note: Types of set-off. Contractual set-off arises where a right of set-off has been created by an express contractual agreement. It is used when contracting parties want to extend or limit set-off rights which are available under general law (although it cannot be used to alter the scope or operation of insolvency set-off which applies mandatorily regardless of any contractual agreement between the parties—see Practice Note: Types of set-off—Insolvency set-off). This Practice Note examines:

ARCHIVED: This Practice Note has been archived and is not maintained. This practical guidance relates to the pre-Procurement Act 2023 regime This Practice Note contains guidance relevant to public procurement exercises commenced before the Procurement Act 2023 (PA 2023) came into force on 24 February 2025. In-scope procurements begun on or after this date are governed by PA 2023. Under the transitional and savings provisions for PA 2023, the previous public procurement regimes continue to apply to the extent necessary to allow contracting authorities to complete and manage procurements commenced before PA 2023 came into force. This Practice Note should be read in that context. For background reading, see Practice Note: Introduction to the Procurement Act 2023—PA 2023. Further practical guidance on PA 2023 is set out in a separate subtopic, see: Procurement Act 2023—overview. This includes the following Practice Note: Automatic suspension—PA 2023. Automatic suspension The Public Contracts Regulations 2015 (PCR 2015), SI 2015/102 govern in-scope procurements above the relevant thresholds (see Practice Note: Introduction to public contracts procurement—pre PA 2023 [Archived]).

Consultant 1 The Consultant warrants and undertakes to the Employer that no act, omission or default of the Consultant in relation to the Services shall constitute, cause or contribute to a breach by the Employer of the Employer's obligations under the Building Contract, any other agreement with any Interested