Supply Contracts

June 10th, 2020 by James Goudie QC in Decision making and Contracts

Procurement Policy Action Note 04/20 “ Recovery and Transition from Covid-19” sets out guidance on payment by public bodies to their suppliers to ensure service continuity during the coronavirus outbreak. It builds on PPN 02/20.

 

Co-operation

June 9th, 2020 by James Goudie QC in Decision making and Contracts

Two Districts and a Town in Germany entrust the disposal of their mixed municipal household waste to a special purpose association which they control together. The local authorities are of course “ contracting authorities” for the purposes of the public procurement regime. The association is a “body governed by public law”. It also is a “contracting authority” for the purposes of Directive 2014/24.

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Procurement Risks

June 9th, 2020 by James Goudie QC in Decision making and Contracts

MHCLG has published “ Review into the risks of fraud and corruption in local government procurement”. Pages 50-52 make a series of good practice recommendations.

 

PFI Contracts and Services

June 5th, 2020 by James Goudie QC in Decision making and Contracts

PFI contracts are starting to expire. Managing their end will be complex and time and resources intensive. Decisions will have to be made on whether services should then be provided in-house or by a contractor. Early preparations are needed.

The National Audit Office has produced a Report, “ Managing PFI assets and services as contracts end”. It examines the risks to assets and services, the preventative steps to be considered, and the preparation and delivery of contract expiry.

 

Ultra Vires

May 7th, 2020 by James Goudie QC in Decision making and Contracts

On the application of the ultra vires doctrine to contracts with public bodies, see SFM v Christ the King College and Isle of Wight Council (2020) EWHC 1118 (Comm). The Judge held that the contract in question was a finance lease rather than an operating lease, I.e. a form of borrowing, and beyond the College’s capacity and ultra vires.

 

 

Consultation

April 8th, 2020 by James Goudie QC in Decision making and Contracts

In R (AD) v Hackney LBC (2020) EWCA 518 the Court of Appeal has dismissed an appeal from the rejection of a challenge to a 5% cut to funding for one element of an Education, Health and Care Plan. The cut was alleged to have been unlawful on account of a failure to consult under Section 27 of the Children and Families Act 2014. The Court held that there was no such failure. They overruled first instances that such a duty arises whenever a local authority makes a decision which will necessarily affect the scope of outs SEND provision. The – per Bean LJ – “modest reduction in one element of SEND funding” was not sufficient to trigger a strategic review with the consequent requirement of widespread consultation. The Court left for another day (para 48j the issue of what level of major budget cuts or transformation of a local authority’s SEND provision would trigger a duty to consult wider than the Schools Forum either under Section 27 or at common law. If a local authority rationally concludes that a particular level of saving in SEND provision can be achieved without a significant adverse impact, but that a more drastic budget reduction, which it is not proposing to implement, might well have such an impact, that is not enough to bring Section 27 into play.

 

Coronavirus Regulations

April 3rd, 2020 by James Goudie QC in Decision making and Contracts

Explanatory Notes to S.I. 2020/392 state :

It will be possible to make secondary legislation to bring forward the end date of 7 May 2021 “ if social distancing rules are relaxed or removed on the basis of medical and scientific advice”: para 3.4.

The Government does not intend to issue Guidance : para 11.1

 

Remote Attendance, Meetings and Public Access

April 3rd, 2020 by James Goudie QC in Decision making and Contracts

The Local Authorities etc (Coronavirus) (Flexibility of Meetings) ( England and Wales) Regulations 2020, S.I. 2020/392 contain 4 Parts. Part 1, Regs 1-3, is General. It and Part 4, Police and Crime Panels, apply to England and Wales. Parts 2 and 3 apply to England only. Part 2 relates to Remote Attendance and consists of Regs 4&5. Part 3 relates to Modification of Meetings and Public Access Requirements. It consists of Regs 6-17. The Regs apply to Meetings that are required to be held, or held, before 7 May next year. Reg 3 relates to Interpretation, including “local authority” and “local authority meeting”.

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Meetings

April 2nd, 2020 by James Goudie QC in Decision making and Contracts

The Local Authorities etc ( Flexibility of Meetings ) Regulations 2020, S.I. 2020/392, have been made on 1 April 2020, and come into force on 4 April 2020, enabling local authority meetings to be held remotely. They are not identical to the draft Regulations.

 

Procurement

March 30th, 2020 by James Goudie QC in Decision making and Contracts

Procurement Policy Note 01/20 on Responding to COVID-19 has now been followed by Procurement Policy Note on Supplier Relief due to COVID-19.