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.
The economic difficulties faced by local government have never been far from the headlines in recent months. Central government is encouraging the public sector to look at potential savings in operational long-term contracts. Potential areas for savings include, among other things, removing or rescoping soft services. In some cases, it may represent better value for money to remove such services from a contract. These services could be delivered by the local authority or be subject to a separate procurement exercise.
The courts have ruled that a successful tenderer which raises unreasonable objections to an application to vary a confidentiality ring in a public procurement dispute may be liable for the claimant's costs of the application, even though it's not a party to that dispute. The decision means that successful tenderers wanting to object to the use and adaptation of confidentiality rings in procurement challenges should consider carefully the extent to which they should raise objections.