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…

Charity: Charity Commission updates guidance on exempt charities

The Charity Commission guidance on exempt charities (CC23) has been updated to include current details of principal regulators, and information related to regulations that have recently come into force. Exempt charities are institutions that have charitable status and must comply with general charity law, but unlike other charities they: cannot register with the Charity Commission (Commission) are not directly regulated by the Commission and instead have (or will have) a principal regulator, ie a body or authority responsible for regulating the charity under a specific legal framework may only be investigated by the Commission as part of a statutory inquiry at the request of their principal regulator The great majority of higher education institutions (HEIs) in England are ‘exempt charities’.  The principal regulator of exempt charity HEIs (and of charities that are their ‘connected institutions’) is the Office for Students (OFS).  A complete list of English HEIs that are regulated by the OFS as exempt charities is included in Annex B, OFS Regulatory advice 5: exempt charities.  All HEIs in Wales and the remaining HEIs in England are regulated directly by the Commission.  The charitable status and activities of Scottish HEIs are regulated by the Scottish Charity Regulator (OSCR). The updated Commission guidance reflects the amendments to Schedule 3 to the Charities Act 2011, introduced by the Higher Education and Read Full Article…

Charity: Updated guidance on reporting serious incidents

On 14 June 2019 the Charity Commission for England and Wales published updated guidance for charity trustees on how to identify and report serious incidents, titled How to report a serious incident in your charity. A serious incident is any incident that results in, or risks, significant: harm to beneficiaries, staff and other people who come into contact with the charity through its work loss of the charity’s money or assets damage to the charity’s property harm to the charity’s work or reputation The updated guidance includes information on the reporting obligations of trustees, and the main categories of reportable incidents.  It also provides an examples table indicating the types of incidents that should or should not be reported. The guidance includes a link to a new online form that can be used to report an incident on behalf of the trustee body.  In order to submit the form, the following information must be provided: Contact details including: contact details of the person submitting the form; the charity name and, if it is registered, the registration number; reference numbers and contact details, if the incident has been reported to other organisations, eg the police; and names and registration numbers of any other charities involved in the incident Details of the incident including: date of the incident; what happened; date the Read Full Article…

Charity: Guidance for charities with a connection with a non-charity

On 29 March 2019, the Charity Commission for England and Wales published: ‘Guidance for charities with a connection to a non-charity’.  The guidance specifies ‘good practice’ which is intended to help trustees run their charities more effectively, avoid difficulties and comply with their legal duties in the context of their connections with non-charitable organisations. The guidance applies to a charity if it: has set up and owns a trading subsidiary has been set up by the non-charity, for example: corporate foundations, or charities set up by social enterprises, campaigning organisations, or government or local authorities receives regular funding or support from the non-charity gives regular funding to the non-charity, for example: grant makers who regularly fund a non-charity; charities set up to support the activities of a non-charity, such as charities with a link to an NHS Trust, or other ‘friends of’ charities works regularly with a non-charity to deliver services, campaigns or other projects has a non-charity as trustee, or where the non-charity can appoint some of the trustees has a non-charity as its sole or significant member The guidance does not set out new rules but draws from existing laws and guidance to set out six broad principles for managing and reviewing a charity’s connections with non-charities.  These are as follows: Recognise the risks Do not further non-charitable Read Full Article…

Governance: Bribery Act 2010: post-legislative scrutiny

On 14 March 2019, the House of Lords Select Committee on the Bribery Act 2010 published its ‘Report of Session 2017-2019 The Bribery Act 2010: post-legislative scrutiny’ as to whether the Act is achieving its intended purposes.  The Select Committee was appointed by the House of Lords on 17 May 2018 to consider and report on the Bribery Act 2010.  The Act received Royal Assent on 8 April 2010 and came into force on 1 July 2011. In its principal conclusions and overall assessment, the report states that ‘the Act is an excellent piece of legislation which creates offences which are clear and all-embracing’, and the new offence of corporate failure to prevent bribery is regarded as ‘particularly effective’.  The report reviews the legislation and makes certain recommendations. The report highlights that the ‘Ministry of Justice Guidance’ (guidance), published under s.9 of the Act,  is less successful in providing SMEs with the information to assist them with adopting a formal anti-bribery policy, and could provide companies considering exporting with more assistance on the point at which hospitality would begin to influence the recipient’s course of action.   It is recommended that the guidance makes it clear that businesses need to conduct risk assessments, and provide staff training on procedures (see paragraph 194).  It is also recommended that the Secretary of State 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…