A recent public procurement case brings into focus the circumstances in which a declaration of ineffectiveness (DoI) remedy may be available under the Public Contracts Regulations 2015. The decision affirms the principles set out in Alstom and provides more certainty for contracting authorities and successful bidders as to the likelihood of a DoI being an available remedy should they face a procurement challenge after a contract has been entered into.
Given the growing popularity of light rail systems across the globe, operators, passenger transport executives, local authorities and commentators alike are calling for further investment in order to better harness the great opportunities for building on this growth. Developments in this sector have the potential to provide welcome improvements to public transport in the United Kingdom, ease the pressure on congested roads and improve access for many communities.
The Cabinet Office recently published a procurement policy note on taking account of a supplier's approach to payment in the procurement of major contracts. The note sets out questions for public purchasers to incorporate into their selection questionnaires and focuses on whether contractors have paid subcontractors within 60 days of receiving an invoice. It also reflects a wider trend in the government's use of procurement as a means of addressing wider societal issues.
According to a recent budget speech, the government has abolished the private finance initiative (PFI) for future projects. Given its complexity, political sensitivity and knife-edge financial arrangements, it is hardly surprising that the PFI has proved to be so problematic and it is highly unlikely that anyone will be sorry to see it go. However, the question remains as to what will replace it.
The Court of Appeal recently handed down its long-awaited judgment in Faraday Development Ltd v West Berkshire District Council. Overturning a fully reasoned first-instance judgment, the court deemed a development agreement containing contingent obligations on the developer to carry out development to be a 'public works contract' as defined in the public procurement rules. The decision has important potential ramifications for public and private development projects.
The economic difficulties faced by local government have never been far from the headlines in recent months. Central government is encouraging the public sector to look at potential savings in operational long-term contracts. Potential areas for savings include, among other things, removing or rescoping soft services. In some cases, it may represent better value for money to remove such services from a contract. These services could be delivered by the local authority or be subject to a separate procurement exercise.
The courts have ruled that a successful tenderer which raises unreasonable objections to an application to vary a confidentiality ring in a public procurement dispute may be liable for the claimant's costs of the application, even though it's not a party to that dispute. The decision means that successful tenderers wanting to object to the use and adaptation of confidentiality rings in procurement challenges should consider carefully the extent to which they should raise objections.