The use of large up-front fees and disproportionate deposits has already resulted in significant cost consequences for one care provider.
In a consultation paper issued in early March, and giving only a month for responses, the Department for Business Innovation & Skills (BIS) consulted on proposals for any company wishing to bid for public contracts to be required to identify their “beneficial owners”. A “beneficial owner” will include anyone holding more than 25% of the shares in the company or having significant rights to influence it, for example, by appointing a majority of the board. This is currently the test for UK companies to register “people with significant control” and provide details of them to Companies House.
The consultation suggested four “options” to require bidders to provide “beneficial ownership” information:
- to require non-EU companies to register their beneficial ownership information centrally and then to require all bidders to refer to the relevant register when either responding to the standard PQQ or submitting a European Single Procurement Document (ESPD). The non-provision of this information would then be made a ground to exclude the bidder from the procurement;
- to require non-UK companies to provide beneficial ownership information direct to the contracting authority;
- to treat a failure to provide beneficial ownership information as making a bid incomplete or non-compliant; or
- to make it a condition of awarding a contract that beneficial ownership information is provided.
We responded to the consultation, saying that the main problem with all of these options is that, under the public procurement case law, it is difficult to add further exclusion grounds unilaterally. If a contracting authority tries to exclude a bidder for a failure to provide information which the Public Contracts Regulations (or their Utilities and Concessions equivalents) do not require bidders to provide, this would clearly open up the contracting authority to a procurement challenge.
We also highlighted the fact that there could be significant administrative costs for contracting authorities if they were required to “go looking” for beneficial ownership information or were to have to check it.
We suggested that, if the Government wishes to make it a condition of tendering that beneficial ownership information is provided, they should lobby the European Commission to change the public procurement Directives to allow for this. There was ample opportunity to have done this in the two-year consultation period leading to the 2014 public procurement Directives, and this is a pity that the Government did not address this then.
We are happy to provide a copy of our full response to the consultation to anyone who would be interested to receive one.
For more information
Contact Andrew Millross.
The government announced on 16 May that it will provide a fund of £400m to cover the costs of removal and replacement of cladding to high rise residential blocks which have failed tests.
Whilst some people are under the impression that preparing a Lasting Power of Attorney (LPA) is simply a case of completing a form and ticking a few boxes, it is about far more than this.
A big fear for some people facing divorce and the inevitable carving up of the matrimonial assets. They seek assurances that such assets will be “ring-fenced” and retained for them.
Thinking about the legal status of being a cohabitant probably isn’t at the top of the ‘to do’ list.
When an individual is thinking about making a gift to another individual, consideration needs to be given to the Potentially Exempt Transfer (PET) trap.
We are now only a few weeks away from the biggest change to data protection laws in over 20 years. Are you compliant?
The tragedy, in this case, is that there were options readily available to the midwives that they could have used. This was not a case of having to go above and beyond.
Arising from the recent Family Division announcement, people who think they are legally divorced may in fact still be married.
The SCCS has issued providers in the scheme a series of updated and new documents in order to assist with their National Minimum Wage review.
To receive invitations to our events, as well as information and articles on legal issues and sector developments that are of interest to you, please sign up to Newsroom.