Blue Light LegalIssue 2
THE LATEST LEGAL UPDATES AND KNOW-HOW
Welcome to the second issue of Blue Light Legal, our quarterly bulletin looking at the latest legal developments and know-how across the areas of commercial contracts, procurement, outsourcing, technology, data protection, employment and construction relevant to the fire and rescue sector.
We hope you enjoy this issue. If you have any comments or feedback, please get in touch with Saman Anwar.
Contracting for inflation – we have experienced the highest level of price inflation in a generation and although predictions suggest that some of those inflationary pressures are likely to ease in the near future, the World Economic Forum’s Global Risks Report 2023 predicts that the cost-of-living crisis will remain the number one global risk for the next two years. In that context contractual price review mechanisms are increasingly under the spotlight as a mechanism for ensuring that businesses can conclude long-term contracts with in-built flexibility to address turbulent market conditions. This note sets out some of the key considerations to bear in mind when negotiating and drafting price review clauses.
Managing intellectual property and confidentiality - it is important to recognise and protect different intellectual property rights in the public sector so that their true value can be fully realised. This guide explains the basics of IP and IP rights, how to manage them, and why and how to approach confidentiality.
Business continuity management toolkit – this document issued by NHS England highlights the need for business continuity management so that organisations can maintain continuity of key services in the face of disruption. Whilst this document is primarily aimed at NHS organisations, the principles in the document may be of interest to wider public sector organisations.
An update on the Procurement Bill
- Latest progress and expected timeline – the Procurement Bill passed through its final stages in the House of Commons on 13 June with several amendments. Read our blog which provides an overview of those key amendments as well as a wider update on the expected timeline for the implementation of the Procurement Bill.
- New national security provisions - several conservative backbench MPs tabled a series of amendments regarding firms that may pose a risk to national security by bidding for public contracts. In response the Government put forward amendments to address these concerns. The wider debate on national security concerned the obligations that Chinese companies have to the Chinese Government under current Chinese legislation and how this may lead to surveillance of UK public authorities who use the goods and services of Chinese companies. Read our blog for more information.
Procurement Policy Notes
- PPN 02/23 (Tackling Modern Slavery in Government Supply Chains) – this PPN, together with associated guidance, reinforce the Government’s commitment to tackle modern slavery crimes. In our blog, available here, we consider the four specific developments in the PPN and the time periods for implementation.
- PPN 03/23 (Standard Selection Questionnaire) - this PPN updates the Selection Questionnaire (SQ) and accompanying statutory guidance. The SQ updates and/or introduces questions on data protection, health and safety, financial checks, supply chains, modern slavery and more. The revised SQ is to be in use by 1 June 2023.
- PPN 05/23 (Implementing New Free Trade Agreements) - this PPN sets out changes to public procurement obligations which arise out of the UK’s new Free Trade Agreements with Australia and New Zealand. Under the PPN, contracting authorities should note that: (i) contracts whose value cannot be estimated must be treated as being equal to the relevant threshold and thus subject to the full regime; (ii) use of a Prior Information Notice (which are used as a call for competition instead of a standard contract notice where certain requirements are met) will no longer be permitted by sub-central contracting authorities and utilities; and (iii) they must not use options, cancel a covered procurement or modify awarded contracts to avoid international obligations.
- PPN 06/23 (The Commercial Playbooks) - the Cabinet Office produces Commercial Playbooks, and accompanying Guidance Notes, for commercial teams in order to improve decision-making and ensure the assessment, procurement and management of public services delivers better outcomes and value for money for the public. There are currently 4 Playbooks: Sourcing, Consultancy, Construction, and Digital, Data and Technology (DDaT). The Playbooks and their associated guidance are considered good practice and other public sector organisations are encouraged to consider taking the suite of Playbooks into account as part of their commercial activities. The PPN is linked here. The Playbooks are available on the Gov.uk website.
- PPN 07/23 (Security Classifications Policy) - the Government Security Classifications Policy (GSCP) was updated on the 30 June 2023 pursuant to this PPN. The Policy applies to any information or data that is created, processed, stored or managed as part of a HMG contract and organisations within the scope of the PPN must ensure that appropriate protective security controls are in place for new and existing contracts in line with the updated GSCP.
James Waste Management LLP v Essex County Council (2023) - the English High Court recently considered whether a contracting authority’s modification to an existing waste management services contract was a “substantial modification” which required a new procurement process in terms of the Public Contracts Regulations 2015. The judge held that the modifications did not amount to a “substantial modification” and therefore did not require a new procedure because they did not:
- render the contract materially different to the one concluded;
- change the economic balance of the contract in favour of the supplier; and
- introduce conditions which, had they been part of the initial procurement would have allowed for the acceptance of a tender other than that originally accepted.
In reaching its judgment the court made two points of general application in such cases:
- the circumstances in which a contract modification may be permitted should be construed narrowly; and
- a claimant alleging an illegal modification should prove it; it is not for the contracting authority to demonstrate that no unlawful modification has occurred.
The judgment is a useful addition to the small body of UK case-law on modification of contracts and will be of interest to contracting authorities.
The digital evolution of tech and sourcing - our Global Tech and Sourcing team have released episodes of our new concise training webinars looking at the digital evolution of tech and sourcing. The topics covered are to assist organisations in navigating the rapidly evolving issues new technologies can bring, particularly around the associated legal risks and commercial impacts. The topics range from ESG and its importance to organisations to agile contracting approaches. The sessions are immediately available to watch when you register.
EU Artificial Intelligence Act - European members of Parliament have sought to finalise their position on the latest version of the EU AI Act, Europe’s approach to the future regulation of AI in the market. Should a parliamentary position be settled, trilogue discussions between the European Commission, the European Parliament, and the European Council on a final version of the AI Act will begin, thereby entering the final countdown towards the implementation of its provisions across Europe. It is hoped that a final agreement between the three organisations during 2023 remains in reach, with the act becoming binding law sometime within the next two years. For further information on the EU AI Act, read our summary.
New Data Protection and Digital Information Bill - on 8 March 2023, the UK Government published its Data Protection and Digital Information (No.2) Bill. This is the second version of the Bill published by the UK Government, the first of which was published in July 2022 and put on hold last September by the then-appointment prime minister, Liz Truss. The new draft Bill aims to reform the UK’s current data protection framework and is part of a wider package of legislative change designed to maximise the benefits of Brexit, with the freedom for UK Parliament to deviate from areas of law previously regulated by the EU. For further information, see our summary of the draft bill.
Be Aware UK contains the latest news and insights from our Employment team including those over the past quarter.
RealWorld Law (Construction) provides an overview of real estate and construction law in various countries across the globe. Please see here for an overview of the current legal construction framework in the UK.