Procurement
We provide a comprehensive service in the development and implementation of contracts, particularly for the local government and RSL sectors and private organisations working with them. Our services include:
Construction contracts
Advice on construction contracts is provided by our construction and technology group, which aims to provide a personalised service for clients in a cost effective manner. This group also provides advice and assistance in the contentious side of disputes.
Areas of our experience include assisting on:
- contract strategy; assisting clients to develop the most appropriate way of achieving their objectives;
- procedures to select the design team and contractors, and the preparation of those contracts both with well established forms of contract such as JCT and in the more recent less adversarial forms such as NEC and PPC2000;
- methods to avoid common disputes;
- an independent check of contract and tender documentation before issue; and
- the implementation of recent legislation and, in particular, Part II of the Housing Grants Construction and Regeneration Act 1996.
We have particular experience in advising where the EU procurement rules apply and how to comply with them.
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Joined Up Management Procurement Services (JUMPS)
JUMPS is a package of services designed to complement the procurement expertise of clients and their consultants. They are:
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Service
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Objective
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Service A
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Assist in developing an appropriate strategy for construction procurement Appraise the client of the construction procurement options available and to assist in developing a strategy based on appropriate contract terms and conditions for contractors and consultants (in-house as well as external).
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Service B
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Review contract terms and conditions Ensure the client is using the latest editions of standard form contract, any bespoke amendments are appropriate, consistent and enforceable and, if appropriate, recommend further bespoke amendments or an alternative standard form contract.
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Service C
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Review tender documentation Ensure that the contractual elements of tender documentation are prepared by the consultant in accordance with the client's instructions.
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Service D
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Review of contract documentation before execution Ensure that the relevant form of contract has been completed satisfactorily and that the contract documentation reflects the tender selected.
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Service E
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Services available after letting of contracts Assist the client with "Employer" functions under the relevant contract during the term of the contract.
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Service contracts
Service contracts and related contracts
Service contracts generally have common themes such as:-
- the extent of the services provided;
- the interface with services retained in house;
- quality assurance, cost control and best value provisions; and
- what can be done if things go wrong.
We use the term "service contract" as opposed to the commonly used "service level agreement" because a complete contract dealing with provisions of services will cover other matters in addition to service levels. The term "service level agreement" is also commonly (and wrongly) used to describe a grant subject to conditions, where a grant is provided to enable the recipient to provide services to a third party. If the conditions are not complied with, future payments of grant are suspended and/or grant already paid can be clawed back.
We have built up considerable experience of advising on service contracts and grants subject to conditions in a number of different contexts including:-
- service provision within a group of registered social landlords, including services provided:-
- by parents to subsidiaries;
- by subsidiaries to their parents;
- by one subsidiary to another;
- by using assets belonging to the purchaser of the services; and
- by using assets owned by neither the service provider nor the purchaser;
- services provided by a local authority to "public bodies" under the Local Authorities (Goods and Services) Act 1970;
- service provision following outsourcing;
- a project involving both housing and care provision to a health authority with a back to back contract with a specialist care provider;
- contracts for services to be delivered to third parties as the agent of the body to whom the services are provided;
- PFI projects (see our PFI section); and
- grant condition agreements for a variety of funding regimes including:-
- RDA (formerly SRB and English Partnerships);
- European funding (including ERDF and ESF);
- National Lottery Charities Board (and other lottery projects);
- local authorities.
- IT and website service provision - please refer to our page on IT Law by clicking here.
Service contracts can vary in their complexity, but a central theme is getting the right balance of risk between supplier and client and also that the right form of contract is used. Particularly in arrangements with sub-contractors, service contracts require particular scrutiny, for example, in PFI schemes, so that organisations working in collaboration have a clear and fair basis for apportioning risk. Some model standards are developing, but equally there will be situations where a bespoke contract is appropriate. Our cross-disciplinary approach enables us to bring in lessons learnt from different sectors, with a view to creating contracts which really do address how best to ensure proper delivery but also the incentivisation of better performance over time.
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Information Technology contracts
Information Technology continues to play an ever important part in all aspects of our lives, private and commercial. It is also increasingly being seen by government as an important medium for delivering better central government and local authority services as well as a key component in the skills training of individuals and in the regeneration of communities.
Further, many more complex goods and services today now involve an important IT component. For example, we have acted for one RSL client in drafting a contract which combines stock condition survey services and an IT solution to capture and process the collected data, all sourced from one consultant.
We are able to advise on all aspects of IT law and practice. Key areas are:
- licences and patents for computer software. Please refer to our section on copyright and intellectual property on our Business Law page by clicking here.
- procurement of software and hardware, separately or as a combined supply
- agreements with IT consultants and software developers
- agreements of all kinds with external providers of computing or applications services, from outsourcing to complex public private partnership relationships.
Internet
The role of the internet continues to develop, if not always in the directions and at the rate expected. Organisations of all kinds now need to be aware of the implications and requirements of doing business over the internet and particularly for website trading. Important legislation has come into effect regulating the internet of which all organisations should be aware - this includes the Regulatory Investigation Powers Act 2000, the Electronic Communications Act 2000 and the Consumer Protection (Distance Selling) Regulations 2000 as well as the Data Protection Act 1998. We are able to advise on this legislation and good practice in developing websites (including Advertising and Marketing requirements) as well as agreements ancillary to setting up and maintaining a website e.g. website hosting agreements.
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Partnering
Although still in its infancy, partnering has quickly become an established part of construction procurement. For many publicly funded schemes it is a requirement. We can help you establish a clear partnering framework which sets out the roles of each party but does not slow the construction process with unnecessarily cumbersome procedures. We have advised on partnering arrangements for the new build and refurbishment of housing estates.
We have also advised on the most appropriate forms of partnering contact; for example the New Engineering Contract (NEC) forms and the recent PPC2000 Partnering form.
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Best value, PPP and PFI
We are in an extremely good position to offer the perfect "fit" for skills for a range of public/ private partnership initiatives, working closely with officers and members of the local authorities and other stakeholders. We offer a co-partnering approach where we can freely exchange know-how and innovation for the benefit of the end-users of the services which local authorities and other public bodies have to provide within a Best Value framework. We have a dedicated Best Value Projects Group which is responsible for delivering assistance in all facets of PPP/ PFI/ Best Value initiatives including:
- establishing the optimum structure and commerciality of the transaction and a robust procurement strategy. In our experience funders and community often share a common interest in the sustainability of PFI/ PPP projects (even if their motivations may be different). Funders' lawyers may have a different perspective and we see our role as getting them to own the project, whilst ensuring that the deal is commercially viable and the operator is only paid for what it is delivering;
- advising on maximising the flexibility available to a contracting authority with the EU procurement framework, not only with reference to the core project itself, but also related elements, if a scheme and additional facets would offer greater synergies, better value for money and a more commercial proposition;
- devising and monitoring the procurement timetable. We have, within our team, lawyers and non-lawyers with considerable project management experience. It is incumbent on us to ensure that we deliver what is required of is on time and within an agreed budgetary framework;
- developing robust evaluation criteria both for shortlisting and selecting the preferred bidder which reflect not only established PFI/ PPP practice (with particular reference to those matters highlighted in TTF Technical Note No 4 "How to appoint and work with a preferred bidder"), but also include ways of reflecting the views of local residents. We have experience (some good and some bad) of exhibitions held by bidders for PFI and regeneration schemes which we are keen to share with our clients;
- developing the documentation for the project including draft contract documentation. For example, in a PFI scheme, in our view, it is best to produce a draft agreement relatively early in the procurement process using our precedents and incorporating familiar definitions which are compliant with TTF, DETR and 4P's guidance. This should assist in achieving consistency in terminology at an early stage and in drawing out key issues likely to arise in the payment mechanism, output specification and service delivery plan. The clauses in the Project Agreement dealing with Best Value need to recognise the operator's role of facilitating front line services which themselves are subject to Best Value performance indicators.
- advising and assisting during final negotiations. Closing the deal effectively with the operator's funders will require considerable preparation for due diligence, particularly surrounding risk management and the protection of payment flow. The arrangements put in place by any contracting authority for managing risks retained by the public sector will be the subject of some scrutiny, particularly in terms of its arrangements with other stakeholders for managing change events;
- developing and settling all necessary contractual documentation. We are able to draw upon the extensive experience of members of our support team in relation to retail developments and multi-agency projects.
We also provide a research and secondment service to organisations seeking to develop best practice or otherwise needing to supplement existing skills with a view to getting high priority projects completed. We are assisting a number of contractors in developing innovative approaches to public/ private partnerships create a greater variety of solutions to fit local and regional needs.
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Construction disputes
Construction disputes can arise at any time during the construction process. We have experience of exploring different ways of resolving them with you including Alternative Dispute Resolution, Adjudication, Arbitration and the Technology & Construction Court. We have, for example, represented RSLs in arbitration proceedings by main contractors for loss and/or expense claims. Whatever the dispute, we aim to define the main issues promptly and work towards an early solution. Emphasis is placed upon the resolution of disputes and considerable effort is put into controlling them where possible and preventing them from escalating. Please refer to our pages on disputes by clicking here.
For more information about our procurement services, please call Andrew Lancaster on +44 (0)121 212 7421 or email andrew.lancaster@anthonycollins.com or Mark Cook on +44 (0)121 212 7472, or email mark.cook@anthonycollins.com
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