Are you missing out on some potentially lucrative ICT contracts?

An estimated £13.8 billion was spent in 2011/2012 by the public sector on ICT. Have you been put off trying to win a slice of this because you think the procurement process is too complex and will require you to invest too much time and cost to get the necessary security clearances without a good chance of success because the incumbent supplier will most likely win? You are not alone.   The OFT Market Study has found that these are real barriers to competing which prevent suppliers from tendering. But it also found that suppliers themselves are hindering competition in this market by complex pricing and a lack of transparency. Things are changing though and the process of tendering for government and local authority ICT contracts may get easier.

In January the European Parliament voted to introduce new directives to help simplify the process, which may make tendering a simpler and more attractive process for small and medium sized suppliers.  In particular, the reduction in the documentation required from bidders will mean suppliers can submit self-declarations through a standardised document. Only the winning bidder will now have to submit formal evidence.   The introduction of a mandatory requirement for electronic communication in public procurement could increase accessibility to SME’s and the division of contracts into lots is also being encouraged with turnover requirements being limited to a maximum of twice the estimated value of the contract, except in justified cases.  Although the government has 2 years to implement the directives, it has pledged to get the rules onto the UK statute books quickly (which means we might see them by the end of this year). So ICT suppliers not currently involved in procurement may want to start considering whether tendering could now be a viable option for them.

Exciting news

Two of Kent’s best-known law firms – Cripps Harries Hall and Vertex Law are merging at the end of September 2013. Cripps Logo

The combined strength of the two firms creates a major new law firm, with 45 partners and 260 staff and an enhanced joint client offering across core areas.

With Cripps’ office in Tunbridge Wells and Vertex’s office Vertex logocloser to the centre of Kent, in Kings Hill, the combined firm will have a strong position in the Kent legal market and an increased reach across London and the South East.

For more details, click here.

Excluding the foreseeable

Image; Dwight Burdette (wikimedia commons)

Image; Dwight Burdette (wikimedia commons)

The Court of Appeal’s recent decision in John Grimes Partnership Limited v Gubbins [2013] EWCA Civ 37 has made it clear that if a contacting party can reasonably envisage a particular type of loss occurring as a result of their actions, they could be held liable for that loss.

In the case, the Court of Appeal held that an engineer who caused a delay in completion of a development project was liable for damages caused by a fall in the market value of the property.

The facts

Mr Gubbins engaged John Grimes Partnership Ltd (JGP), a consultant engineer, to design and complete a road and drainage system by March 2007 on land acquired for residential development purposes.

In contravention of an expressly agreed deadline, the works remained incomplete at the end of March 2007. Mr Gubbins subsequently engaged another consultant engineer in April 2008 who re-designed the road and drainage system, gaining quick local authority approval.

In the interim, JGP commenced proceedings against Mr Gubbins for unpaid fees of £2,893 and Mr Gubbins counterclaimed for £20,000 in respect of the defective, unfinished works and the breach of the expressly agreed deadline, claiming that as a result there had been a reduction in the market value of the private residential units, a reduction in the offer from a Housing Association for the affordable units and an increase in building costs.

At trial the High Court found in favour of Mr Gubbins and JGP appealed on the basis that its responsibilities under the contract did not include a duty to protect Mr Gubbins against losses due to a fall in the market value of property.

Court of Appeal decision

Dismissing the appeal, the Court of Appeal held that, although in some cases it may be found that a party to a contract had not taken on responsibility for a particular liability (even if that liability was reasonably foreseeable), the general position is that a contracting party will be liable for all losses arising naturally, according to the normal course of things, from the breach of contract and all losses which may reasonably be supposed to have been in the contemplation of the parties at the time they made the contract, as a probable result of the breach.

On the basis of the particular facts, the Court of Appeal held that JGP knew that Mr Gubbins intended to use the land for development purposes and knew that there was a risk that there could be a fall in the market value of the property if the works were not completed on time. Accordingly, JGP was liable to Mr Gubbins for the losses suffered even though such losses were not within JGP’s control and far exceeded the £15,000 fee payable to JGP under the contract.

Lessons to learn

The case demonstrates that the principle of foreseeability of loss still remains the standard mechanism for assessing remoteness of damage.

Unless a party could not possibly be taken to envisage responsibility for a particular type of loss or there are some other special circumstances which render the implied assumption of responsibility inappropriate for a particular type of loss, it is prudent to expressly exclude liability for particular events by including suitable exclusion clauses and limitation clauses in the contract.

New rules for Online Behavioural Advertising

Bulletin on new OBA rules - click to read PDFSince spring last year, websites and advertisers have been getting to grips with the new law on obtaining consent for cookies.

One common use of cookies is for online behavioural advertising (OBA), and from 4 February 2013 websites and advertisers using OBA will have additional rules to comply with.

The Advertising Standards Authority (ASA) is taking over responsibility for ensuring that consumers are made aware of, and can exercise choice over, the collection and use of information for OBA. The ASA’s first step is the introduction of new rules on OBA which will come into force from early February.

I have prepared an article summarising the key elements of the OBA Rules which websites and advertisers should be aware of. To read this article in full please click here (PDF).