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 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.

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.

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.

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

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

Case C- 344/18, ISS FACILITY SERVICES, in which the ECJ gave Judgment on 26 March 2020, concerned public buildings in Ghent, a public contract for cleaning services, and the transfer of that contract to multiple transferred. What happened to the rights and obligations arising from the contracts of employment with the transferor? Did they transfer only to the transferee for whom the worker will perform his or her principal tasks? “ No”, says the ECJ. Or will they transfer to each of the transferred, in proportion to the tasks performed by that worker?

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The key questions raised by Joined Cases C-496/18 and C-497/18, HUNGOED, are (1) whether EU law permits reviews of modifications of public contracts to be initiated ex officio by public authorities, and (2) if so, whether such reviews can be initiated after the expiry of time limits in force at the time of the modifications. Advocate-General Bobek answers the 1st question : “ Yes “. EU law neither requires nor prevents ex officio reviews of (a) public contracts or (b) modifications of such contracts: paras 2, 68, 75 and 127. The Advocate-General answers the 2nd question : “ No “. The EU Principle of Legal Certainty bars national public authorities from initiating such reviews once the applicable time limit has already expired : paras 2, 77, 83-87, 94 and 127.