Under most construction contracts, the contractor takes on the ground conditions risk. However, a recent case has demonstrated that the risk can fall on the employer.
Housing providers hoping to escape the EU procurement rules as a result of the recent deregulation measures, should note that this is unlikely pre-Brexit or during any transitional period whilst the EU rules still apply to the UK.
Hidden away in the latest package of Infringement cases brought by the European Commission, was a statement that the Commission has sent a formal notice to the Netherlands concerning Dutch housing corporations. The notice says that the failure of the Netherlands government to ensure that Dutch housing corporations follow the EU procurement rules is an infringement of those rules. If the Netherlands government does not act to require Dutch housing corporations to follow the EU procurement rules by the end of this month, the next step will be a “reasoned opinion” from the Commission followed by a referral to the European Court of Justice.
This is the same process which led to the circular from the Housing Corporation in September 2004 requiring UK housing associations to comply with the EU procurement rules.
The fact that the Commission is taking this action now suggests that it is very unlikely that any exemption from the EU procurement rules could be secured for English registered providers or Welsh registered social landlords in the near future.
If you have any queries regarding the above, please contact Andrew Millross.
The UK Government has been consulting on how it should promote social value in its procurements. Here is our response that we submitted to the consultation...
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