Blue Light Legal

The latest legal updates and know-how

Commercial Contracts

• Effective Contract Management – this article ‘Managing technology contracts to deliver good outcomes: Written guide’ examines key strategies to effectively manage contracts to help deliver successful projects. Whilst the article focuses on technology contracts, the contract management principles in the article can be applied generally to any contract.

   

• Better Contracts Podcast – our International Commercial Contracts team discuss the key issues affecting the current market in our new podcast series Better Contracts.The team looks at topics surrounding the supply chain crisis, strength of obligations, direct and indirect damages and the common pitfalls when contracting internationally. Listen now and subscribe to join the conversation.

   

• IPR considerations - in every contract relating to the provision of goods or services where intellectual property rights (IPR) exist, the parties should look carefully at the issue of ownership and licensing of IPR in the items that are to be delivered under the contract. IPR ownership should be considered on a case-by-case basis, weighing commercial benefits and risks to maximise long-term value. Authorities may like to consider alternative ownership and licensing options, taking into account factors such as cost and incentivising supplier innovation, as well as any desire or requirement to use the IPR beyond the current contract. Further guidance on IPR considerations is set out in section 2.7 of the Cabinet Office Model Services Contract Guidance. This Guidance also sets out the standard IPR clauses typically used in contracts and what they mean. Page 63 of the Digital, Data, and Technology Playbook further explains different options for IPR ownership.

Procurement

• An update on the Procurement Bill – the Procurement Bill is currently passing through Parliament and had its second reading in the House of Commons on 9 January 2023. A briefing was published by the House of Commons ahead of the second reading; please see a summary of the 85-page document here. The summary sets out an overview of the proposed contents of the Procurement Bill and details of the second reading. On 9 January 2023, the Cabinet Office also published a document outlining the benefits of the changes in the Procurement Bill for prospective suppliers as the Procurement Bill has new, more flexible rules which is aimed to lift barriers for SMEs and VCSEs.

   

• UK Government Blog – a recent article on our UK Government Blog ‘Set menu or smorgasbord: will the Procurement Bill help to streamline planning and commencing procurements?’, DLA Piper considers what four specific proposals in the Procurement Bill – the new, flexible competitive tendering procedure, changes to direct awards, framework agreements and dynamic markets – mean for planning and commencing procurements and the extent to which they may achieve the goal of a more flexible and simplified UK procurement regime.

   

• Procurement Policy Note 01/23 – the first PPN of the year, PPN 01/23: Requirements to publish on Contracts Finder, together with the associated Guidance on the Transparency Requirements for Publishing on Contracts Finder, was published on 19 January 2023. The PPN provides consolidated guidance that reminds public bodies of the requirements of the Public Contracts Regulations 2015 (PCR 2015) to publish information about opportunities and awards, over certain value thresholds, on Contracts Finder.

   

• Braceurself Limited v NHS England (2022) - this 2022 case related to the procurement of orthodontic services by the NHS. The claimant had narrowly missed out on winning the contract due to a mistake made by evaluators who had misunderstood a solution which they had suggested. The English High Court decided that had this error not occurred the claimant would have won the competition, however, in determining whether damages should be awarded the court decided that the breach was “not sufficiently serious” enough to justify such an award. The key factors in the court’s decision were:
  • the mistake was simple, unintentional and excusable;
  • the impact of the loss on the claimant, who had remained in business, was limited; and
  • the breach had low impact on public access to orthodontic treatment.

The decision is a helpful one for contracting authorities as it suggests that the court may be prepared to overlook a damages award where an error is made which is excusable and has no serious effect on the claimant’s business. However, for bidders, it is another reminder that the court will not automatically award damages even where an error is made by the contracting authority in the evaluation of a tender.

Outsourcing

• Global Sourcing Laws - outsourcing has become an increasing area of regulatory focus over the last few years. With DLA Piper’s Global Sourcing Laws we help you navigate this patchwork quilt of legislation around the world, as well as understand the differing approaches to common outsourcing requirements in line with local market conventions. Our Global Sourcing Laws has an international focus, but coverage includes the UK. Please note you will have to make a free account to view this content.

   

• Outsourcing in turbulent times - it appears as if 2023 could be quite rocky from an economic perspective. In such circumstances, both customers and suppliers of technology and business process related services will be looking at both their existing and proposed contracts and considering what they might need to do to safeguard their interests. Please see our article ‘Contracting in turbulent times’ which helps clients navigate through the possibilities.

Technology

• Tech Index 2022 - the technology sector faces a critical moment as economic signs continue to point to a possible downturn. Yet, despite this, DLA Piper’s latest Technology Index findings show the industry has managed to remain optimistic thanks to forecasts of increased revenue and ESG opportunities. As a firm, we launched this unique report using our own sourced data on the latest tech topics and delved into multiple questions and aspects facing the sector regarding growth in an unpredictable political and economic landscape. This report provides invaluable detail regarding a variety of topics including M&A valuations and drivers, national and cyber security, managing ethical risk, fintech implementation and ESG.

Data Protection

• Procurement Policy Note 03/22 – PPN 03/22 – Updated Guidance on Data Protection Legislation contains guidance which takes into account the UK’s exit from the EU and a very helpful summary of the subsequent changes to the data protection legal framework. It further contains updated standard legal clauses on data protection which can be included in contracts. Whilst this PPN applies to all Central Government Departments, their Executive Agencies and Non-Departmental Public Bodies, other public bodies (such as fire and rescue authorities) will also be subject to the new Data Protection Legislation and may wish to apply the approaches set out in the PPN.

   

• Data adequacy post-Brexit, the UK’s first ‘data bridge’ – On 19 December 2022, the UK’s Government’s first data adequacy decision of the post-Brexit era came into effect. Under the Data Protection (Adequacy) (Republic of Korea) Regulations 2022, the UK formally determined that the Republic of Korea provides an adequate level of data protection for the purposes of the UK GDPR. Consequently, UK businesses can now freely transfer personal data to recipients in South Korea without needing to take any additional steps (such as entering into standard contractual clauses or carrying out transfer impact assessments). Please see further details in our article here.

Employment

• What’s new in employment law – DLA Piper’s article ‘Looking forward to 2023: What is coming up in employment law?’ looks forward to what authorities need to have on their employment law radar in 2023.

Construction

• Constructing the Future - for more than two years, the global construction industry has endured a severe stress test of its capital, labour and resources. The industry has encountered successive global shocks: from pandemic restrictions to prolonged supply chain disruption, inflation increases, an energy crisis, volatile commodity prices and the first large-scale land war in mainland Europe in 80 years. Our report examines how the construction industry is coping in an era of significant macro, geopolitical and technological disruption. It looks at how contractors across Europe, Asia Pacific and the Middle East are adapting their investment strategies to mitigate risk and exploit opportunities; how they are tackling price increases and supply chain issues, responding to increasing ESG regulation and investing in technology to help resolve some of these issues. Please note you will have to enter your details in order to request a copy of this report.