It has been another difficult few weeks for many of us, especially those who find themselves under tier 3 restrictions.
The European Court has upheld the long-standing principle that parties to a dispute should be able to choose their lawyers without having to go through a tender process (or use a framework).
This exception is set out in Regulation 10(1)(d) of the Public Contracts Regulations 2015.
The challenger was arguing that the European directive on which this regulation was based, breached the principle of equal treatment, in terms of creating an unjustified difference in treatment of these services from other services that had to be tendered for.
The European Court said that clients should be able to choose lawyers for dispute resolution based on their abilities, rather than having to follow a strict “most economically advantageous tender” approach. The exception also specifically includes arbitration and, by implication, adjudication.
This contrasts with legal work that is not “dispute-related”, which is subject to the “light-touch regime”. If an organisation subject to the public procurement rules has a legal spend of over £615,278 (excluding VAT), a public procurement tender process is needed to appoint their lawyers. Where this is through a framework agreement (which is likely to include any arrangement under which charging rates and appointment terms are agreed), this is measured over a four-year period.
Even here, though, up to 20% of this “requirement” can be sourced (for example for specialist work) from lawyers that are not on the framework under the “small lots” provisions, as long as the value of each separate appointment does not exceed £65,630 (excluding VAT).
If you are involved in a dispute, it is important to get the right legal advice. The case confirms that your flexibility to appoint the legal advisers of your choosing is not hampered by having to comply with the public procurement rules to appoint those legal advisers.
For more information, please contact Andrew Millross.
1. P.M v Ministeraad, Case C-246/18
We have submitted our response to the White Paper Consultation based on the discussion held at the “Planning for the Future - what does this mean for affordable housing” webinar we held on Fri 9 Oct
Anthony Collins Solicitors is pleased to have been ranked as a Band 1 firm once again.
Since March 2020, commercial property owners and occupiers across many sectors, whether housing associations, charities, care providers or local authorities, have been impacted by the rules regulating how they deal with their tenants and their landlords. It seems each week there is a change in policy, regulation or legislation, governing how they must respond.
On 18 September 2020, the High Court gave its decision regarding the Judicial Review of Simply Learning Tutor Agency Ltd & Others v Secretary of State for Business.
A key element of the Bill is the establishment of a duty holder regime and requirement to maintain the ‘golden thread of information’ throughout the life cycle of high-risk residential buildings
We have been working with care homes to update their contracts and advise on the risks of charging the resident a regular “top-up” or additional fee where a resident is funded through NHS CHC
The parliamentary processes are complete and the Restriction of Public Exit Payments Regulations 2020 (“the Regulations”) which cap exit payments in the public sector at £95,000 will be in force from 4 November.
As the UK’s social housing sector recovers from the initial Covid-19 outbreak and lockdown, now is the time to focus on the challenges that may emerge next.
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.