Procurement: Time limit for claims and disclosure obligations

In Royal Cornwall Hospitals NHS Trust v Cornwall Council [2019] EWHC 2211 (TCC), the Technology and Construction Court (the ‘Court’) considered a claim brought by the incumbent provider, the Trust, under the Public Contracts Regulations 2015 (the ‘PCR’) against the Council. The Council published a contract notice in the Official Journal of the European Union inviting tenders for three separate contracts to provide sexual health services in Cornwall (‘the new contract’).  The contract notice and the tender documents provided that the new contract would be for seven years and would have a value of £2,500,000 per annum (‘financial cap’) with the exception of year one where an additional £100,000 was available for the implementation of a new digital platform. The Trust’s view was that the services to be provided under the new contract were materially the same as those it was providing under its current contract, and therefore could not be provided for less than about the £2.88m per annum that it spent in providing those services.  The Trust obtained the tender documents and claimed that it had undertaken a significant amount of work to determine whether it should submit a bid, however, it ultimately decided not to do so, and informed the Council accordingly.  Its reasons were that it could not satisfy the service specification within the financial cap Read Full Article…

Procurement: Equal treatment and previous participation

In Case T 10/17 Proof IT SIA v EIGE (16 October 2018), the question of applying the principle of equal treatment was considered when an incumbent service provider participated in a tender exercise for the re-procurement of online services.  The incumbent was awarded the contract.  However, another bidder, Proof IT SIA, established in Riga, Latvia, (the ‘company’) brought a claim against the contracting authority, the European Institute for Gender Equality (EIGE).  The company sought an annulment of EIGE’s decision to reject its tender and the awarding of the contract to the incumbent.  The company also sought damages for loss of opportunity.   The contract was to be awarded on the conventional basis of the ‘most economically advantageous’ offer based on a quality and price ratio – the tender specification set out the award criteria and their weighting.  The company argued that there were imprecise award criteria, and a lack of transparency, which had the effect of conferring on EIGE an unrestricted freedom of choice.  This, the company argued, contravened the principles of transparency and equal treatment.  The company further argued that EIGE had committed manifest errors of assessment, and if these were to be corrected the result would be that the company would be the successful tenderer.  It was also alleged that the principle of equal treatment was breached in such Read Full Article…

Commercial agreements: The scope of an ‘entire agreement’ clause

Our June 2018 Newsletter reported on the case of NF Football Investments Ltd and another v NFCC Group Holdings Ltd and another [2018] EWHC 1346 (Ch). It concerned the acquisition by the claimant of the shares of Nottingham Forest Football Club Limited from the defendants.  This judgment concerned a claim for statutory misrepresentation pursuant to section 2(1) of the Misrepresentation Act 1967.  The defendants argued that this claim should be struck out as it was precluded by an ‘entire agreement’ clause set out in the share purchase agreement (SPA).  As we reported previously, the court agreed that it was not the intention of the parties to address outwith the contractual structures, claims arising out of the SPA (such as the statutory misrepresentation claim). This judgment has been overturned on appeal, however, in the case of Al-Hasawi v Nottingham Forest Football Club Ltd and others [2018] EWHC 2884.  The judge noted that it may have made commercial sense for the parties to have excluded claims for statutory misrepresentation, but he held that the entire agreement clause was not effective to achieve this.  To hold otherwise would be to improve the bargain that the parties had made.  Although the contract did provide for certain contractual remedies, the court held that the existence of specific remedies could not lead to the inference that all Read Full Article…

Scope of an ‘entire agreement’ clause

NF Football Investments Ltd and another v NFCC Group Holdings Ltd and another [2018] EWHC 1346 (Ch) concerned the acquisition by the claimant of the shares of Nottingham Football Club from the defendants.  This judgment related to a claim for statutory misrepresentation pursuant to section 2(1) of the Misrepresentation Act 1967.  The defendants argued that this claim should be struck out as it was precluded by an ‘entire agreement’ clause set out in the share purchase contract. The alleged misrepresentation was based on a material difference between the Club’s liabilities as stated in a spreadsheet included in due diligence materials and the Club’s liabilities as calculated in accordance with the share purchase agreement.  The claimant argued that it had relied upon the spreadsheet’s valuation to enter into the share purchase agreement. The court considered the share purchase agreement and noted that it contained: an indemnity that allowed the claimant to make a claim to the extent that the actual liabilities of the Club exceeded an amount that was broadly equal to the valuation of the Club’s liabilities as shown in the spreadsheet; indemnities in respect of misstatement or misrepresentation; details of procedures and time limits for notifying claims under the share purchase agreement; and an entire agreement clause that stated:  ‘This agreement (together with the documents referred to in it) Read Full Article…

Validity of ‘no oral modification’ clauses

In Rock Advertising Limited v MWB Business Exchange Centres Limited [2018] UKSC 24, the Supreme Court was asked to consider whether a contractual term prescribing that an agreement may not be amended save in writing signed on behalf of the parties was legally effective.  Such clauses are commonly called a ‘No Oral Modification’ clause. The dispute concerned a licence to occupy premises, MWB Business Exchange Centres Limited (MWB) being the licensor and Rock Advertising Limited (Rock) being the licensee.  The clause in the contract that prevented oral variations stated: ‘All variations to this Licence must be agreed, set out in writing and signed on behalf of both parties before they take effect.’ MWB fell into arrears in relation to their payment of licence fees.  A schedule of revised payments was proposed and it was purported that an authorised representative of each of the parties agreed to this schedule over the telephone.  MWB was subsequently evicted and the validity of this ‘agreement’ to vary the licence came into dispute.  This was on the basis that it had not been not set out in writing and signed on behalf of both parties, as required by the clause set out above. The court noted that the reasons often asserted for treating No Oral Modification clauses as ineffective are: ‘(i) that a variation of Read Full Article…

Revised PPN on changes to data protection legislation

On 18 May 2018, the Crown Commercial Service (CCS) published PPN 02/18 for contracting authorities in England and Wales.  PPN 02/18 updates and replaces PPN 03/17, and contains enhanced guidance and clarification in a number of key areas relating to data protection, as follows: controllers and processors contract liabilities joint controllers crown to crown data agreements expired/legacy contracts protective measures enhancements to the standard generic clauses in Annex A For any contract amendments yet to be agreed and for new contracts to be let after May 25, the PPN states that contracting authorities ‘should use the provisions of this PPN including the updated standard generic clauses at Annex A’.  For contracts that ‘concern law enforcement processing, amendments should take effect from the date that the Data Protection Bill comes into force.’  The Data Protection Bill received Royal Assent on 23 May 2018 and became the Data Protection Act 2018. On 24 May 2018, the Data Protection Act 2018 (Commencement No 1 and Transitional and Saving Provisions) Regulations 2018 (SI 2018/625) were made.  These regulations set out the dates that various provisions in the Act will come into force.