What constitutes a concession? When does a contract come within the Concession Contracts Regulations 2016 rather than the Public Contracts Regulations 2015? Why may it matter? These were issues covered in OCEAN OUTDOOR v HAMMERSMITH & FULHAM LONDON BOROUGH COUNCIL (2019) EWCA Civ 1642 and DUKES BAILIFFS v BRECKLAND COUNCIL (2023) EWHC 1569 (TCC). There are different financial thresholds. There are different procurement procedures. There are different permissible selection criteria.

In the context of a services contract, there are 5 main elements of a concession contract within the 2016 Regulations.

FIRST: the contract concluded in writing must be identified; and not excluded by the land exemption.

SECOND: this contract must be one where a contracting authority entrust to an economic operator for “pecuniary interest” the legally enforceable obligation to provide and manage services to or for the public which the authority would otherwise provide itself for its residents (or someone else).

THIRD: the consideration for the contract must consist either solely in the right to exploit the services or in that right together with payment.

FOURTH: a transfer of “operating risk” must be involved.

FIFTHLY: a real risk of potential loss must be involved.

The Working Time Regulations 1998 do not rule out all flexibility and modifications. In some circumstances agreements may be concluded to cover a situation. This may be a collective agreement or a workforce agreement and/or it may be a written “ relevant agreement “ or part of the written terms of a contract of employment. Regulation 13 of the WTR relates to entitlement to annual leave, Regulation 13A to additional annual leave, and Regulation 14 to compensation related to entitlement to leave. In CONNOR v CHIEF CONSTABLE OF SOUTH YORKSHIRE (2023) EAT 42 it is held that a “ relevant agreement “ as to the calculation of final holiday pay cannot be an agreement which would permit the employer to pay less under Regulations 13 & 13A in the case of an incomplete leave year than that which would be required under Regulation 14.

Basic contractual and estoppel principles are reaffirmed by Lewison LJ in McCARTHY v JONES (2023) EWCA Civ 589 at paras 17 and 36 : –

1. Where a contract is contained in a written document the document will be interpreted without regard to the parties’ subjective understanding of what they had agree.
2. By contrast, where there is an alleged oral contract, that understanding is admissible, at least to the extent of deciding (i) whether or not the parties had reached a concluded agreement, and (ii) if so, what its terms are.
3. The principles applicable to the assertion of an estoppel by convention arising out of non-contractual dealings include that there must be words or conduct from which the necessary sharing of a common intention may be inferred.

The time from which the term of a lease is to commence is essential to the creation of a binding agreement for lease. In PRETORIA ENERGY v BLANKNEY ESTATE (2023) EWCA Civ 482 the Court of Appeal says that if the start date cannot be deduced with reasonable certainty that is a very powerful indicator that the agreement is incomplete and there was no intention to contract.

Familiar principles in relation to consultation are restated in R (BETTER STREETS FOR KENSINGTON AND CHELSEA) v KENSINGTON AND CHELSEA RLBC (2023) EWHC 536 (Admin), in which it is held that there was no duty on the local authority to consult before deciding whether to reinstate temporary cycle lanes that it had removed.

The Court would be cautious about inferring that a duty to consult had arisen in the case of a democratically elected public authority (para 37). A duty to consult might arise where there had been an established practice of consultation, or where, in exceptional circumstances, not consulting would lead to conspicuous unfairness (para 38).

Even where, in a rare case, a common law duty to consult arose, the authority would have considerable leeway to decide the nature of the consultation exercise (para 39). A finding that a consultation exercise was unlawful by reason of unfairness would be based on a finding that something had gone clearly and radically wrong (para 40). An action founded on alleged breach of promise had to demonstrate not just a broken promise but also unfairness amounting to an abuse of power (para 44).

In deciding whether anything had gone wrong, a Court would have regard to the GUNNING/COUGHLAN/MOSELEY criteria (paras 41-43 inc and 47).

BOXXE Ltd v SoS for JUSTICE ( 2023 ) EWHC 533 ( TCC ) is useful in relation to the adequacy of damages and applications to lift automatic sanctions, and in relation to the approach tp calculating the limitation period in procurement disputes and when it is that knowledge of the grounds of challenge arises.

In R (Blacker) v Chelmsford City Council (2023) EWCA Civ 25 the Court of Appeal holds that a local authority’s Planning Committee had not breached the “ principle of consistency” in decision-making by refusing to grant planning permission for a development despite having previously indicated that it was “minded” to grant permission. The initial indication was just that. It was not a substantive decision. Having given it, the Committee’s decision was to defer the application for consideration at a subsequent Meeting. All options were left open.

The Committee had acted in accordance with the authority’s statutory Constitution. The Constitution required deferment because approval involved rejecting the Planning Officer’s Recommendation.

The importance of consistency in decision-making means that when there has been a previous decision to grant or refuse planning permission in respect of the same site that is capable of being a material consideration on a later application; and if the decision-maker is minded to depart from the previous decision it has to engage with the reasons for that decision and explain its departure from them.

However, the principle of consistency was not engaged. That was because there had been no earlier substantive decision.

The deferral requirement in the Constitution aimed to give the decision-making Committee the opportunity to stand back and think twice about the implications of rejecting an Officer Recommendation. That was the process that the Committee had duly followed.

In MALIK v HUSSAIN (2023) EWCA Civ 2, concerned with exchange of land contracts, at paras 40 &42 the Court of Appeal affirms that the question of interpretation of a contract is, and must be kept, distinct from the issue of whether terms are to be implied into the contract. The process of implication involves a rather different exercise than that of interpretation.  The express terms must be interpreted before one can consider the question of implication. The appropriate course is first to interpret the express provision , carrying out the unitary exercise and adopting the iterative approach identified and explained in the Supreme Court in WOOD v CAPITA, it being unimportant whether one starts with the factual background and the consequences of rival constructions or a close examination of the relevant language in the contract. constructions

The Procurement Bill completed its Lords Stages on 13 December 2022. Its Second Reading in the House of Commons is scheduled for 9 January 2022. The House of Commons Library has on 20 December 2022 issued a Research Briefing on the Bill.

The Procurement Bill has reached its Report Stage in the House of Lords. The Government has tabled further amendments. These include : –

• A new duty on the face of the Bill to require contracting authorities to have regard to the participation of SMEs.
• Making it clear that CAs may not generally require audited accounts to test the financial standing of bidders as part of the conditions of participation, or insurance relating to the performance of the contract to be in place before the award of the contract.
• A new statutory duty on the Government to provide a central digital platform, free of charge.
• Raising contract thresholds for publication of information.
• Changing the test for conflicts of interest.
• Implementing Recommendations of the Delegated Powers and Regulatory Reform Committee Report on 14 June 2022.