A recent public procurement case brings into focus the circumstances in which a declaration of ineffectiveness (DoI) remedy may be available under the Public Contracts Regulations 2015. The decision affirms the principles set out in Alstom and provides more certainty for contracting authorities and successful bidders as to the likelihood of a DoI being an available remedy should they face a procurement challenge after a contract has been entered into.
The Cabinet Office recently published a procurement policy note on taking account of a supplier's approach to payment in the procurement of major contracts. The note sets out questions for public purchasers to incorporate into their selection questionnaires and focuses on whether contractors have paid subcontractors within 60 days of receiving an invoice. It also reflects a wider trend in the government's use of procurement as a means of addressing wider societal issues.
The Court of Appeal recently handed down its long-awaited judgment in Faraday Development Ltd v West Berkshire District Council. Overturning a fully reasoned first-instance judgment, the court deemed a development agreement containing contingent obligations on the developer to carry out development to be a 'public works contract' as defined in the public procurement rules. The decision has important potential ramifications for public and private development projects.