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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

28 Days Later – The Public Procurement Version
Wednesday 18th July 2018

In a “post-Carillion” world, the subject of payment terms for sub-contractors has come to the fore again.

As avid readers of public procurement law blogs and legislation will know, the Public Contracts Regulations 2015 (“the Regulations”) require that payment of undisputed invoices must be made within 30 days by contracting authorities, and they must pass this obligation down to the tier one contractor.

Although the Regulations came into force in 2015, Network Rail have recently become notable as the first major contracting authority to introduce teeth to payment clauses for their contractors.

Network Rail’s new Terms and Conditions will require all tier one contractors to pay suppliers within 28 days of work and all cash retention policies will be abolished. Most importantly, Network Rail’s new terms mean contractors will face the consequences of being in breach of contract if they fail to comply. Previously, it was only a voluntary framework in place with minimal checks on contractors.

Although the penalties have not yet been decided by Network Rail it is an important step in the right direction towards ensuring that contractors who do not treat their sub-contractors fairly will face penalties. The plans also include a function to allow the tier two contractors to report directly to Network Rail if a tier one contractor is not complying with the payment terms.

Network Rail aren’t the only ones backing up their talk with tangible actions, Build UK and CECA have also proposed abolishing retentions on construction matters by 2023 and Peter Aldous MP has proposed a bill in Parliament that would see a retentions deposit scheme established.

These developments are of interest to contracting authorities because Network Rail has shown how this obligation in the Regulations can have teeth and be beneficial and not just be a “tick box” exercise. It should also be of interest to the private sector who can use Network Rail’s lead in pushing for good payment terms for sub-contractors. If you are a tier one supplier though – be aware this obligation may be coming your way.

If you would like to speak to a Procurement Law expert about your, please contact a member of our team


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Seeing Red - CJEU rules that Louboutin red sole mark does NOT fall within absolute ground for refusal
Wednesday 13th June 2018

In a long anticipated decision, the CJEU has ruled that a mark consisting of a colour applied to the sole of a shoe is not covered by the prohibition of the registration of shapes since such a mark does not consist ‘exclusively of the shape’.

Article 3(1)(e)(iii) of the 2008 Trade Mark Directive (“the Directive”)  is the absolute ground for refusal concerning signs consisting exclusively of the shape which gives substantial value to the goods. The description of the mark in question in the Louboutin case specifically states that the contour of the shoe does not form part of the mark and is intended purely to show the positioning of the red colour covered by the registration.       

Still, the CJEU was asked to consider the question referred by the Rechtbank Den Haag. Namely whether “shape” within the meaning of Article 3(1)(e)(iii) of the Directive was limited to the three dimensional properties of the goods or whether it extended to other properties of the goods, in this case, the colour.

Although the detailed judgment is not yet available, the CJEU has provided some initial details in respect of their decision in a Press Release published today. They have confirmed that as ‘shape’ is not defined in the Directive the word should be considered using its ‘usual meaning in everyday language’. The mark in question does not seek to protect the shape of the sole of the shoe but the colour applied to the specific part of that product.

Whilst some will be waiting for the full judgment to examine the Judge’s deliberations it seems the result is clear and confirms what most of us already knew, that colour is not a shape.

If you would like to find out more on the topic please contact Elke Kendall or another member of our commercial team


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The Care Quality Commission Catch-22 Dilemma; and How Our Dental Lawyers Solve the Conundrum
Thursday 17th May 2018

When compulsory registration with the Care Quality Commission (CQC) was introduced for dental practices in England, another stage in the buying process was also introduced. Given that it is unlawful to operate an NHS practice without CQC registration, buyers needed to add the CQC application to their ‘to do’ list when acquiring dental practices. 

Shortly after the introduction of compulsory registration, the CQC took the stance that it would not register any person or company for a practice if it did not have an interest in that practice. This created a catch-22 dilemma, you couldn’t own the practice until you were CQC registered and you couldn’t be CQC registered until you owned the practice.

This dilemma was artificially solved by the introduction of ‘letters of comfort’ (now referred to as the CQC position statement), in which the CQC confirms it has have processed the application and intends to fully register the buyer following completion.

The next hurdle was introduced by the Local Area Teams (LATs). Upon submitting notices to transfer the NHS contract to a partnership name, the LATs began to request a copy of the CQC position statement. The LATs were looking to check that the CQC registration would be placed in the joint names of the seller and the buyer whilst the NHS contract was held by them as partners.

Specialist dental lawyers reacted with a solution, albeit a clunky one, that now involves multiple CQC applications when buying a practice. The seller is usually already registered at the practice, the buyer and the seller then apply to be registered as partners whilst the seller deregisters as an individual. Then following completion, the buyer and seller deregister as partners and the buyer registers as an individual. This allowed for a CQC position statement to be issued showing the seller and the buyer registered in partnership.

Other than on a few troublesome occasions, this status quo has now continued for a number of years.

However, it looks set to once again become a problem.

In April 2018, the NHS updated its Policy Book for Primary Dental Services including a new paragraph relating to how the LATs should deal with applications for new partnerships as follows:  

“Commencement of the new contract should be made conditional on the new contractor being CQC registered. The CQC will issue a sales and transfer position statement document but this is no guarantee of registration. A practice cannot commence seeing patients until they have received their registration certificate with the regulated activities included.”

This appears to suggest that all LATs will require not a CQC position statement but instead full registration with the CQC.

As we know already, the CQC will not fully register anybody who does not yet have an interest in the practice. So once again, we have a catch-22. The LAT won’t add the buyer’s name to an NHS contract without CQC registration and the CQC won’t conclude the registration without the buyer having an interest in the practice.

Fortunately, then antics of some troublesome LATs in the Midlands mean we are already one step ahead this time. For some time, dental lawyers have encountered ‘rogue’ LATs, who have already been insisting on full CQC registration prior to the commencement of the partnership (and have been doing so for some time before the April 2018 amendment to the Policy Book). On these occasions, the following structure and process has been effective:

  1. Seller and buyer apply for partnership CQC registration.
  2. Seller and buyer enter into a partnership for the dental practice. This partnership leaves the NHS contract in the seller’s sole name but gives the buyer a 0.01% stake in the practice. A partnership deed is entered into making it clear that control and running of the business will continue in the sole name of the seller. This allows the parties to inform the CQC that they are now in partnership.
  3. CQC registers both seller and buyer jointly and the practice is then fully registered as a partnership.
  4. Notice is sent to the LAT to add the buyer’s name as a partner on the NHS contract. The LAT is provided with a copy of the full CQC registration.
  5. The LAT adds the buyer’s name onto the NHS contract.
  6. The original partnership mentioned in stage 1 above is amended on completion of the sale. The interests in the practice are reversed meaning the buyer has the benefit of a 99.99% interest in the practice and assumes control of the day to day running.
  7. The buyer then applies for individual registration with the CQC and the partnership CQC registration can be deregistered.
  8. Following completion, the seller’s name is removed from the NHS contract and the partnership is concluded.

We have yet to see whether all of these stages will be necessary and how individual LATs will interpret the amended Policy Book. However, it is clear that having a specialist dental lawyer involved in your sale or purchase, who understands these complex requirements, will be vital to ensure that your transaction proceeds smoothly.

The Brabners specialist dental team would be happy to answer any specific questions or concerns that you have.

 


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Court rules Google must allow Businessman his ‘Right to be Forgotten’
Friday 27th April 2018

Last week, the High Court in London ruled in favour of a businessman who had been unsuccessful in his request for Google to remove search results regarding his conviction from 10 years ago of conspiring to intercept communications for which he spent 6 months in jail.

Google says that of the 2.4 million requests they have received since the European Court of Justice (ECJ) ruled in 2014 that “irrelevant” and outdated data should be erased, commonly known as the ‘right to be forgotten’, they have removed links to approximately 800,000 pages.

This claim against Google was brought by two businessman, known by the Court as NT1 and NT2 due to reporting restrictions. NT1, who was convicted more than 10 years ago spent four years in prison for conspiring to account falsely, was unsuccessful in his claim. The Judge, Justice Mark Warby said that NT1 had continued to “mislead the public” whilst NT2 had shown remorse in respect of his conviction for intercepting communications.

Justice Warby noted that NT2’s conviction was not related to action taken by him against “consumers, customers or investors” and therefore ruled that Google must allow his ‘right to be forgotten’. The public interest reasons for maintaining the search results related to NT2 were not as strong as in NT1’s case where the Judge said the “information serves the purpose of minimising the risk that he will continue to mislead, as he has in the past”.

Google has said that it would accept the rulings and released the following statement:

“We work hard to comply with the right to be forgotten, but we take great care not to remove search results that are in the public interest. We are pleased that the Court recognised our efforts in this area and we will respect the judgements they have made in this case.”

It is important to note that although described as a ‘right to be forgotten’, Google is not actually removing the “irrelevant” information about an individual, they are simply removing a link to that information from their search results. Google complies with their ‘right to be forgotten’ obligations by having individual concerned provide a list of the URLs they would like removed via an online form. Google then assesses each request individually and decides whether it is in the public interest for the search result to remain, they do not conduct their own search on the individual.

This ruling demonstrates the Court’s willingness to consider and balance the impact of a historical record on the individual and search engine providers’, such as Google, right to maintain search results that are in the public interest. This case is likely to see a wave of new applications to the Court and it remains to be seen whether Google’s approach to requests for the removal of links may soften in light of this ruling.

For more information on the topic, please contact Elke Kendal on 0151 600 3149 or via email


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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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