Legal Q&A

This Q& A concerns a contract for land and vehicles―a mixed contract. Not every land transaction must follow a public procurement process publicised in the Official Journal of the European Union. Whether such a procedure is needed depends on the character of the arrangement and the contracting authority’s involvement, though land can still comprise a procurable component within a contract. The Public Contracts Regulations 2015 ( PCR 2015), SI 2015/102, do not apply where a contract contains inseparable mixed elements and the procurable aspects are not the contract’s principal object. The key point here is to determine whether the dominant element is the vehicles or the land. Under PCR 2015, SI 2015/102, reg 4(2), there are provisions guiding a contracting authority when dealing with a contract that includes some, but not exclusively, procurable elements......

Brexit— Commercial For help with your query, please refer to the following: Brexit—contract clauses and resources—checklist [ Archived] Clause: Brexit—warranty for commercial contracts clause [ Archived] Clause: Territory definition For additional guidance, see: Brexit collection......

Q& A For this Q& A, we take 'email journaling' to mean a method whereby messages entering or leaving a server are duplicated and sent to a single designated mailbox, creating a record of every message in and out, arranged in a user-selected order (typically by date/time). We have limited this response to circumstances that fit those assumptions, and to cases where the journal mailbox cannot be changed or interfered with by any server user holding normal privileges......

Public Contracts Regulations 2015 ( PCR 2015), SI 2015/102, reg 33(2) defines a framework agreement as: Regulation 33(2) of the Public Contracts Regulations 2015 ( SI 2015/102) describes a framework agreement as an arrangement between one or more contracting authorities and one or more economic operators, intended to set the terms that will govern contracts awarded over a specified period, notably concerning price and, where appropriate, the quantities anticipated. The Crown Commercial Service ( CCS) guidance interprets a framework agreement as a broad term for arrangements with providers that lay down the terms and conditions under which agreements for specific purchases—referred to as call-off contracts—can be put in place throughout the life of the agreement......

This Q& A focuses on public procurement under the Public Contracts Regulations 2015 ( PCR 2015), SI 2015/102 As a general principle, the PCR 2015, SI 2015/102 affords bidders considerable latitude to shape bid partnerships and supply chain models to suit their approach. Under PCR 2015, SI 2015/102, reg 63(1), tenderers can draw upon the resources of other organisations to satisfy selection requirements covering economic and financial standing, along with technical and professional capability. A limited carve-out appears at PCR 2015, SI 2015/102, reg 63(7), which permits contracting authorities to stipulate that specified ‘critical tasks’ in a public services or public works contract must be carried out by the prime contractor, or by one from a consortium of primes. Put differently, suppliers are, in most cases, free to deploy their chosen subcontractors when delivering a public contract. That said, this is subject to any...

We have concentrated specifically on sections 108–110 of the Digital Economy Act 2017 ( DEA 2017) and sections 132–133 of the draft Data Protection Bill 2017 ( DPB 2017) for the purposes of this Q& A. Part III of the Data Protection Act 1998 ( DPA 1998) obliges data controllers who handle personal data to notify the Information Commissioner of their processing for inclusion in the register maintained by the Information Commissioner’s Office ( ICO). Controllers seeking to register must pay an applicable fee. For further details, consult the Data Protection ( Notification and Notification Fees) Regulations 2000, SI 2000/188, and official guidance from the Information Commissioner......

A well-known problem amongst procurement professionals A widely recognised headache for procurement practitioners arises from the duty in regulation 53 of the Public Contracts Regulations 2015 ( PCR 2015), SI 2015/102 ( PCR 2015, SI 2015/102, reg 53). It requires the ‘procurement documents’ to be accessible at the time a public contract is advertised in the Official Journal of the European Union (the Official Journal, or OJEU). In essence, contracting authorities must use the internet to provide unrestricted, complete and immediate access, at no cost, to those documents from the day a notice, issued under regulation 51, appears in the Official Journal, or from the day an invitation to confirm interest is dispatched. The issue most often raised, particularly for public procurements run under the restricted procedure (and comparable routes that involve a pre-qualification phase ahead of the award stage), is whether the...

The Freedom of Information Act 2000 ( FIA 2000) and the Data Protection Act 1998 ( DPA 1998) are distinct regimes, save for the overlap raised here. They otherwise operate separately from one another as a rule. FIA 2000 contains various exemptions. Those exemptions mean the kind, character or even the presence of the information need not be revealed under FIA 2000. For this scenario, the pertinent carve-out is in FIA 2000, s 40, in particular FIA 2000, ss 40(1) and 40(5)(a). Where the material amounts to personal data and the data subject seeks disclosure via FIA 2000, the exemption applies in absolute terms......

The question considered by the Supreme Court in Lipton, and the Interpretation Act (or accrued rights) analysis In Lipton v BA Cityflyer, the UK Supreme Court, speaking obiter, examined the temporal reach of the European Union ( Withdrawal) Act 2018 ( EU( W) A 2018). The issue was whether the provisions on retained EU law ( REUL) must be applied by courts to disputes founded on facts predating IP completion day at the end of 2020, and to rights and liabilities that had already crystallised by that point. For ease of reference in this Q& A, matters turning on facts from before IP completion day are called ‘pre- Brexit cases’, while those arising from facts after that date are termed ‘post- Brexit cases’. On one interpretation, the response is that the EU( W) A 2018 provisions concerning REUL and assimilated law have no...

Dynamic Purchasing Systems A Dynamic Purchasing System ( DPS) enables a contracting authority to acquire goods, services and works needed on a recurring basis without running a full public procurement exercise for every individual purchase. It provides a route to buy regularly required items efficiently while remaining compliant. A DPS is intended for sourcing common-use items that are widely available on the market and satisfy the contracting authority’s specifications. Further reading Practice Notes: Introduction to public contracts procurement and Introduction to framework agreements and dynamic purchasing systems Crown Commercial Service ( CCS): Dynamic purchasing system guidance Under the Public Contracts Regulations 2015 ( PCR 2015), SI 2015/102, any authority setting up a DPS must follow the rules specified and cross‑referred in PCR 2015, SI 2015/102, reg 34. In keeping with all procedures under PCR 2015, SI 2015/102, contracting authorities should also adhere to the core...

Assumptions have been made that this is an above-threshold procurement, conducted via a fully compliant public purchasing process in line with the Public Contracts Regulations 2015 ( PCR 2015), SI 2015/102, and that standstill notices were issued under PCR 2015, SI 2015/102, reg 86, to the winning tenderer and all unsuccessful tenderers, across the procurement process. We further assume the original contractor stopped trading (without entering insolvency) at any stage. Consequently, we have not examined the safe harbours that allow for modifying or substituting a contractor under PCR 2015, SI 2015/102, reg 72(1)(d) for this analysis. Where a public contract has collapsed because the supplier has stopped trading (with no sign of insolvency), and the contracting authority is contemplating appointing a replacement, several points require attention by decision-makers herein. A few illustrations are outlined below......