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A B C D E F G H I J K L M N O P R S T V W Y

Commercial

Procurement Policy Notice: New CCS Guidance
Monday 16th April 2018

The Crown Commercial Service (CCS) has published new guidance on supply chain visibility (April 2018) (PPN 01/18) to coincide with the Cabinet Office’s announcement of a range of initiatives intended to make it easier for SMEs to win government contracts. The initiatives aim to make the process more transparent and accountable. The CCS have also launched a consultation as to whether it would be appropriate to exclude suppliers that cannot demonstrate a fair, effective and responsible approach to payment in their supply chain, this closes at 11:45pm on 5 June 2018.

PPN 01/18 is relevant to new procurements from 1 May 2018 and applies to central government departments, their executive agencies and non-departmental public bodies. From 1 May 2018 if a contracting authority is tendering a public contract valued at above £5m per year and is subject to the Public Contracts Regulations 2015 (PCR 2015), SI 2015/102 they must include provisions requiring suppliers to:

  • Advertise subcontract opportunities (post contract award) valued at above £25,000 on Contracts Finder; and
  • Provide reports on how much they spend on subcontracting and how much they spend with SME and VSCE organisations to deliver the contract.

Contracting authorities must ensure they are complying with these new rules on supply chain visibility with a view to ensuring more SMEs are winning government contracts.

If you would like further information about this or public procurement law, please contact Elke Kendall on 0151 600 3149 or via email at Elke.Kendall@Brabners.com.


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Selling a dental practice that operates under either an expense sharing or partnership agreement
Friday 13th April 2018

It is not uncommon to encounter expense sharers or partnerships with either no documentation governing their relationship or alternatively agreements that have not been professionally prepared and may not be fit for purpose.

Before even considering selling the business (which could be either the whole of the business or your individual share) it will be beneficial to formally agree your everyday working arrangements and a clear pathway to retirement or sale.

If you do have an agreement already in place, you should review it to ascertain whether it clearly sets out the procedure for sale or retirement. The agreement may require you to offer to sell your share of the practice to colleagues in the first instance before you can market it externally.

Property considerations are also important. You will need to establish whether the property from which you operate the practice is occupied under a lease or a freehold. In most instances, there will need to be some form of transfer of the property to the new occupier. It is likely that your colleagues will need to be a party to any transfer documents and you may need to contribute towards the costs of them obtaining independent legal advice.  

You would need to establish whether your partners or expense sharers also want to sell. It may be that you can achieve a better price if you sold the entire group as a single business, rather than just your share.

If you are selling as a group, careful consideration will have to be made as to who is going to be responsible to the buyer and for what. You will each be receiving money for your respective interests in the business. Ideally you would only wish to give a warranty to the buyer for matters within your own control. This could result in what is seemingly more work- as each seller will need to give their own full and complete set of responses to enquiries. However, this should not be a cause for concern as this will be for your own benefit, as you don’t want to be held legally responsible for promises made by your colleagues without your knowledge or consent.  

If you are selling just your part of the practice (or your own business within an expense sharing arrangement), although not essential, it is often important to find a buyer that will fit in. This is not so much a legal consideration but a practical one. If you discover that your buyer and colleagues cannot get on half way through the selling process, the buyer may withdraw from the transaction, which will mean wasted fees and expenses.

Your buyer will also probably need to enter into new partnership and expense sharing agreements with your current colleagues as part of the completion process, which is something you may wish to address early in the negotiations.

Brabners have a specialist dental law team and will be able to assist with reviewing or preparing partnership or expense sharing arrangements which can ensure that future plans for retirement or sales run smoothly. Whether you are looking to make the move now or at some point in the distant future getting the right advice can mean fewer disputes and lower stress levels when it comes to selling. 

For more information please contact Nicola Lomas on 0151 600 3321 or via email


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Now you fee me, now you do?
Friday 16th March 2018

The General Data Protection Regulation (GDPR) introduces many new obligations and represents a significant regulatory burden for organisations. In one respect however, it had been sold as lifting a key burden. The GDPR specifically calls for the abolishment of any “general obligation to notify the processing of personal data to the supervisory authorities.” In the recitals, the GDPR notes that such general obligations, of which the current UK system is an example, can produce administrative and financial burdens, without actually contributing to the effective protection of personal data.

Background

Under the Data Protection Act 1998, all data controllers are currently required to register (or ‘notify’) with the Information Commissioner’s Office (ICO). A fee must be paid at the time of registration, and every subsequent year in order to maintain the registration.

The current fees are set by the Data Protection (Notification and Notification Fees) Regulations 2000 (the 2000 Regulations). The 2000 Regulations contain two tiers of fee for data controllers:

Tier 1 (controllers with a turnover of less than £25.9 million or fewer than 250 staff) - £35

Tier 2 (controllers with a turnover of at least £25.9 million and 250 or more members of staff) - £500

The level of the fee was set by the Secretary of State for Digital, Culture, Media and Sport (DCMS), specifically with regard to offsetting the costs incurred by the ICO in carrying out its data protection functions.

The new scheme

Despite the attitude of the GDPR to such notification requirements and financial burdens, the Digital Economy Act 2017 (DEA) makes provision to allow the Secretary of State for DCMS to set new fees to be paid by data controllers under the GDPR regime. Similarly to the former regime, the Secretary is to have regard to offsetting the ICO’s expenses incurred in performing its data protection functions. The Data Protection (Charges and Information) Regulations 2018 (the 2018 Regulations), laid before parliament last month, set the level of the new fees.

Under the new regime there will be three, rather than two tiers of fee:

Tier 1, micro organisations, includes charities, small occupational pension schemes those controllers having a turnover of £632,000 or less, or having fewer than 11 staff - £40

Tier 2, small and medium organisations, includes those controllers that do not fall within tier 1 and have a turnover of £36 million or less, or have 250 or fewer staff - £60

Tier 3, large organisations, includes all controllers that do not fall into either tier 1 or tier 2 - £2,900

Comment

Given that most data controllers that were paying £500 under the older system will fall into the new tier three, this represents quite a significant raise. If, for example, the £500 fee had risen with inflation, it would still only be £623.61.

The explanatory notes to the 2018 Regulations explain the extraordinary rise as reflecting the increased level of information risk presented by tier 3 controllers and the income required for the ICO to perform its new functions under the GDPR.

Though there is undoubtedly a more significant information risk for controllers under the GDPR regime than under the current rules, it appears that it is budgetary considerations that may have driven the tier 3 fee so high. A study undertaken by the Department for DCMS in 2016 projected that the ICO’s funding requirement for 2016/17 would be approximately £19 million. The financial forecast for 2018/19, the first year under the new GDPR regime, puts the ICO’s income requirement at £30 million.

Many organisations will be disappointed by the level of the new fees. Draft texts of GDPR, available for a number of years, had trailed the abolition of the fee which had been viewed as a small silver lining in a piece of legislation that would result in a significant compliance burden for businesses. Though increased accountability measures and stricter procedures will not result in any financial saving for organisations, the new fee may mean that the ICO will not feel the need to resort to the maximum possible fines of €20 million or 4% of global annual turnover for funding.


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Costs awarded against non-party preferred bidder
Wednesday 7th March 2018

Bombardier Transportation UK Ltd v Merseytravel [2018] EWHC 41 (TCC)

Merseytravel ran a tender process for new trains. Stadler was selected as the preferred bidder. Bombardier had also submitted a bid but was unsuccessful. Bombardier issued proceedings against Merseytravel to challenge the award.

As part of the disclosure process, Merseytravel was required to share tender documentation from Stadler’s bid with Bombardier. As is commonly the case, the information that was required to be disclosed was highly sensitive commercial and technical information relating to Stadler’s bid. The court therefore set up a confidential information ring, in which only named persons from Bombardier would be allowed access to the material.

Bombardier later applied for the ring to be expanded so that more of its personnel could be allowed access to Stadler’s sensitive information. Merseytravel had no real interest either way in the matter, but Stadler demanded that Merseytravel oppose the application in order to maintain the confidentiality of its sensitive information. Stadler chose not to attend court, instead they relied on Merseytravel to make submissions against the further disclosure. The court ruled in favour of Bombardier. 

On the question of costs, the court ruled that Bombardier’s costs incurred in making the application should be borne by Stadler, not Merseytravel.  This is important because Stadler had not been a party to the proceedings and had not even attended the hearing.

The case highlights a number of key risks that preferred bidders face when an award is challenged. Firstly, there is the risk that a significant competitor will be granted permission to inspect documents that contain sensitive technical or commercial information. Secondly, even when not formally joined to proceedings, it is possible for a preferred bidder to have a costs order made against it.

The key consideration on the question of costs was who caused the applicant to incur the costs. Merseytravel had remained largely neutral and it was Stadler that had objected to the expanded disclosure and pushed Merseytravel to oppose the application. Preferred bidders should bear this in mind when deciding whether and how to protect their interests in proceedings between losing bidders and contracting authorities.

For more information contact Danny Greenland on 0151 600 3168 or via email.


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Trouble ahead for post-Brexit procurement damages
Wednesday 7th March 2018

Fosen-Linjen AS v AtB AS (E-16/16)

The European Free Trade Association (EFTA) court recently considered the level of culpability which is required before a contracting authority that has breached public procurement law is liable to pay damages. The EFTA court found that any simple breach of public procurement law could lead to a contracting authority being liable to a person that has suffered harm as a result of that breach.

The decision contradicts a recent UK Supreme Court decision in Nuclear Decommissioning Authority v Energy Solutions EU Ltd [2017] UKSC 34. The Supreme Court, considering essentially the same issue, came to the conclusion that damages were not available automatically for a simple breach of public procurement law by a contracting authority. Instead, the Supreme Court ruled that damages would only be available for breaches that were “sufficiently serious.”

The difference is significant as the EFTA court is the equivalent to the CJEU for non-EU countries within the European Economic Area (EEA). Leaving the jurisdiction of the CJEU is a key aim of the UK government in the Brexit negotiations. The remaining 27 EU states however, have been clear that for disputes under any future EU/UK deal, the CJEU must remain the court of last resort on points of EU law. In the past, the UK Government has proposed referring issues of EU law to the EFTA court under any Brexit deal, viewing the EFTA court as perhaps a more independent tribunal. These two cases highlight (a) the extent to which the EFTA court will have regard to EU decisions and principles in coming to its decisions and (b) if the UK ultimately chose not to use either option, our public procurement law could drift over time away from that of the EEA in ways, as shown here, that are not always to the betterment of UK businesses.

For more information please contact Danny Greenland on 0151 600 3168 or via emai.


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Our 2018 Dental Practice Market Predictions
Tuesday 27th February 2018

Ownership in the dental sector continues to be more diverse than in other healthcare settings, with sole practitioners and single site businesses continuing to be the norm rather than the exception. However, we wonder whether this will continue to be the case in coming years.

Consolidation and business growth by acquisition are becoming increasingly common. The market for dental practice sales remains strong and goodwill values remain high, but the calibre of business owner is changing. It is becoming increasingly common for our buying clients to have ambitions to own multiple sites, although we are still a long way from losing the dentist who simply wants to own the practice near to their home.

The business landscape for practice ownership changed significantly over the course of 2017 with mergers and acquisitions affecting some of the largest dental providers.

Early in 2017, we saw MyDentist halt its acquisitions programme to concentrate on running the substantial business it had already accumulated. 2017 also saw the sale of Oasis to BUPA, which is perhaps reflective of large corporate finance’s interest in the UK dental sector. This was reinforced by Zurich based Jacobs Holdings acquiring Southern Dental and investment by CBPE Capital in Rodericks and August Equity in Genesis.

Although the top end of the market undoubtedly saw much activity in 2017, that doesn’t mean that the independent buyer hasn’t been busy. We are seeing a number of newly formed ‘groups’ expanding and becoming increasingly active in the acquisitions market.

A major factor which is becoming an increasing concern for our dental clients has been the ability to recruit quality associates to work within a business. We are finding this a particular issue for clients in rural or town settings, particularly away from London, the Midlands or the North West. Brexit will no doubt impact further with the UK’s ability to attract talented dentists from both Europe and the rest of the world being hindered. A lack of suitable associates will no doubt drive up associate rates, which will in turn mean an associateship is more attractive, and business ownership less attractive as margins are squeezed. The downward pressure on associate rates, which led to huge increases in goodwill values in recent years, could be coming to an end. However, figures are yet to see this playing out, with agents and other professional bodies seeing continued increases in goodwill values.

Purchaser appetite in the dental sector remains high, although buyers are now more discerning. It seems that the days of a seller ‘having their cake and eating it too’ during the negotiation process are fading away, with buyers becoming more sophisticated in their buying approach. A number of newly formed dental acquisition models are emerging, with new ways for current business owners to release equity from within their companies whilst still securing employment in the run up to retirement.

Transaction timescales continue to be a source of frustration for those involved in the sales and acquisition processes. Once a sale has been agreed, delays are often detrimental to all parties involved. The healthcare team at Brabners have a proven track record of reducing transaction timescales by encouraging all clients to work towards a set timeframe with dates in mind from the very beginning. With dental brokerages slimming down their lawyer panels and recognising the benefit of instructing specialist professional advisers, we predict some positive changes in terms of reduced transactional timeframes.

Finance continues to be readily available to the right dentists for the right practice, with the range of lenders with an appetite for the dental market seemingly increasing year on year.

 


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GP Partnership Disputes – When are Partnership Terms Agreed?
Tuesday 27th February 2018

In the absence of a written partnership agreement signed by all partners, can a new GP partnership be created (and an existing partnership be dissolved) through verbal agreement alone?  Yes, held the Court of Appeal in the recent decision of Cheema –v- Jones.

In April 2016, Dr Cheema (Dr A) and Dr Jones (Dr B) entered into a formal partnership agreement to provide medical services out of two Essex-based GP practices (the Old Partnership).  Shortly afterwards, Dr A and Dr B reached an agreement to create a new, expanded partnership between themselves and three other doctors (Dr C, Dr D and Dr E) (the New Partnership).  It was agreed by the parties that the New Partnership would commence on 1 July 2016, and solicitors were instructed to draw up a formal partnership agreement for each of the five partners to sign.

At some time after 1 July 2016, but before a formal partnership agreement had been finalised and signed by all parties, a dispute arose between Dr A and Dr B, which resulted in Dr A being prevented from seeing patients or from accessing practice medical records.  In September 2016, Dr A received a notice from the remaining partners informing him that the New Partnership had been dissolved with immediate effect. 

Dr A challenged the validity of this dissolution for the following reasons:

  • Firstly, the New Partnership had not yet been formally entered into and so could not be dissolved;
  • Secondly, the Old Partnership was, accordingly, still intact and this partnership could not be dissolved without his consent.

However, the Court of Appeal (upholding the original High Court Decision) ruled against Dr A, holding that:

  • A agreement had been reached between Dr’s A, B, C, D and E to form a new, five-member partnership, which they clearly intended would commence on 1 July 2016;
  • There had been no indication that the five partners intended for the terms of the Old Partnership agreement to subsist and apply to all five partners as a ‘fall-back’ position; and
  • It was therefore appropriate to infer that the New Partnership had come into effect on 01 July 2016 as a ‘partnership at will’, and this had superseded the Old Partnership.  The fact that the parties had not yet signed the finalised partnership agreement in respect of the New Partnership was not inconsistent with this finding.

Accordingly, the Old Partnership had automatically dissolved upon the coming into force of the New Partnership on 01 July 2016, and in turn the New Partnership had been validly dissolved by way of agreement of the partners.  That Dr A did not consent to the dissolution was immaterial, despite his arguments to the contrary – unanimity of the partners is not required in order to dissolve a partnership at will.

Comment

The speed at which the parties’ professional relationship broke down perhaps marks this case as unusual, but it undoubtedly serves as a useful reminder to GP’s who are engaged in pre-contractual discussions in respect of a partnership agreement of the importance of involving their legal advisors at the earliest possible stage.  Given the complexity of the laws surrounding the formation of partnerships, it is essential that all parties to such discussions are aware of the risk that a partnership may be deemed to have formed by operation of law prior to the signing of a formal partnership agreement, and are clear on the terms upon which they will be deemed to have agreed in the absence of (or prior to) the formal signed agreement.


For more information on GP Partnerships or corporate matters generally, contact David Seddon (on 0151 600 3375 or David.Seddon@brabners.com)   


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New ionising radiation regulations – what dentists need to know
Tuesday 27th February 2018

On 1 January 2018, The Ionising Radiation Regulations 2017 (IRR17) replaced The Ionising Radiations Regulations 1999 (IRR99). For the most part the regulations remain largely unchanged. However, the new regulations introduce a three-point risk based system of regulatory control. Employers will need to apply to the Health and Safety Executive (HSE) depending on the work relating to ionising radiation being carried out at their practice. The application will either be notification, registration or an application for consent.

How this applies to dental practitioners

Through the usage of x-ray generators, general dental practitioners will be required to register with the HSE. Applications to register must be completed before starting new work. Practitioners who have previously notified the Health and Safety Executive, were required to have applied by 5 February 2018.

What dental practitioners need to do

The nominated person from a dental practice who is responsible for enforcing health and safety law at the practice should have made their application by 5 February 2018.

There is a fee of £25 to register which can be paid by either credit/debit card or PayPal.

The applicant will be required to complete a set of questionnaires as part of the application.

The HSE only require one application, even in scenarios where there is more than one site involved. The applicant must state how many sites are involved and also the number of employees. For the purposes of the application for registration, associate dentists will count as employees.


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Consequences of failure: the need for clarity in procurement documents
Tuesday 6th February 2018

A recent High Court decision has highlighted the need for contracting authorities and utilities to ensure that their tender documentation is as clear as can be.

In the case of MLS (Overseas) Ltd v The Secretary of State for Defence, the Ministry of Defence (MoD) was found to have fallen short of the required level of clarity in its tender documentation by not specifically highlighting the fact that a ‘fail’ mark for a particular question would lead to a tenderer being disqualified.

Facts

In 2015, the MoD published a contract for global port, maritime and logistical support services in the Official Journal of the European Union (OJEU). The proposed contract would run for up to 10 years and be worth a maximum of around £385 million.

MLS submitted a bid that narrowly lost. In the standstill letter sent to MLS, the MoD was clear that MLS’s bid had been identified as the Most Economically Advantageous Tender (MEAT) under the criteria that had been described in the invitation to tender (ITT). The reason the MoD gave for not selecting MLS was that their tender had fallen short of a pass/fail standard attached to one particular question about safety in the supply chain (Question 6.3).

MLS issued proceedings on the basis that the ITT was ambiguous in not fully explaining what the consequences would be of failure to meet the pass/fail standard for Question 6.3. MLS argued that whereas, in other parts of the ITT the MoD had clearly set out the consequences of failing to meet particular standards, no such explanation had been given about Question 6.3.

In its response, the MoD admitted that, due to an error in drafting, there had been no clear statement that the consequence of failing to achieve a pass standard for Question 6.3 would be disqualification. However, they argued that the documentation was sufficiently clear to have allowed a reasonably well informed and normally diligent tenderer to recognise that a fail score for Question 6.3 would mean disqualification.

Judgment

The Court found that the MoD had acted unlawfully and was in breach of its obligations of transparency and equal treatment because the criteria on which they had rejected MLS’s bid were not sufficiently clear from the ITT.

The relevant test for transparency was an objective one. The court must ask whether the ITT, or other tender documentation, was sufficiently clear to ensure that the award criteria would be interpreted in the same way by all reasonably well informed and normally diligent tenderers.

The court highlighted in particular that the MoD had set out a very highly detailed description of the process that they would use to identify the MEAT. Nowhere in that description had there been any reference to Question 6.3. Additionally, other parts of the ITT had included clear statements in bold type that failure to meet certain standards would result in disqualification, this was not the case for Question 6.3.

Comment

While this was a case brought under the Defence and Security Public Contracts Regulations 2011, it concerns principles that run through public procurement law no matter which set of regulations apply.

The case is a useful reminder for procuring authorities of the importance of carefully drafted tender documentation. Even where highly detailed descriptions of the award criteria have been successfully communicated to tenderers, a simple administrative omission can result in massive delays, costs and the potential need to run the whole procurement process again.

Additional caution should be taken from this case by those procuring authorities that are tempted to use intentionally vague language when describing their awarding criteria. Though it may seem that such ambiguity would ensure slightly more room to manoeuvre and exercise discretion in the late stages, as can be seen from this case, it could potentially lead to very serious infringements of procurement legislation.

Tenderers will be reassured by the decision as it should lead to greater clarity on award criteria issued by procuring authorities. Where there does remain any ambiguity, the best response will always be to seek clarification, rather than risking misinterpretation and the need for litigation.

For more information on this topic, contact Michael Winder on 0151 600 3085, or email him at michael.winder@brabners.com.

 


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Better late than never - new data protection exemptions for insurance sector
Monday 22nd January 2018

You’re going on holiday... Great! Flights and hotel booked, annual leave arranged with work and activities planned – now to find some travel insurance.

You go to the website of your preferred insurance company, and there are a number of questions that you have to answer in order to get a travel insurance quote. One such question is likely to be:

“Are you, or any person to be insured on the policy, aware of any symptoms for which you have not yet seen a doctor?”

One might think that there is nothing out of the ordinary here, so what is wrong with this picture? Well, the answer to that question is something which has been of great concern to the insurance sector for some time.
 

What is the issue?
In order to provide a quote for many types of insurance policy (including, for example, travel insurance), the insurer will need to ask questions relating to the customer’s health, as the answers will affect the level of risk, and therefore the quoted price.

However, those answers will constitute “data concerning health”. Under the GDPR (which comes into effect on 25 May 2018), there are very strict rules about how you can hold and use information concerning a person’s health. The UK’s new Data Protection Bill (which is still going through government) provides for certain grounds upon which it is lawful to “process” that data.

For the insurance sector, the only lawful ground available was (until recently) to obtain the customer’s explicit consent. As the insurer needs to know this information, the provision of a quote will be conditional upon the customer giving that consent.

However, under the GDPR, where the provision of a service is conditional upon the data subject giving consent, there is a presumption that the consent is invalid because it has not been freely given.

Herein lies the issue: the insurer requires consent in order to provide a service, but the nature of that consent being required may render the consent invalid.

Various bodies in the insurance sector have asked the ICO to clarify its guidance on this issue, and have been lobbying the government to try to get a new lawful ground introduced for the insurance sector.
 

Recent updates
On 18 January 2018 an updated version of the UK Data Protection Bill was uploaded to the government’s website. In a move which will no doubt delight insurers, one of the grounds upon which the processing of health data (and other sensitive data) will be lawful has been vastly extended.

It will now be lawful (subject to any further last-minute amendments to the Data Protection Bill) to process sensitive personal data for insurance purposes, without having to rely on consent, provided the processing is carried out for the purposes of measures or decisions with respect to the data subject (e.g. providing a quote) and it is necessary for reasons of substantial public interest (the availability of travel insurance is almost certainly a matter of public interest).

Whilst the Bill is still not finalised, it is likely that this provision will remain largely intact when the Bill comes into effect. As companies across the world scrabble to prepare for the GDPR coming into force, 11th hour amendments to the rules may cause some headaches with those preparations. However, for the insurance sector at least, this latest update is certainly a case of “better late than never”!


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