Seminar on the implications of James Waste; modification challenges and standing; and looking ahead to the new Act
We are pleased to invite you to an 11KBW seminar on current and future issues concerning that perennially challenging procurement law topic – the modification of existing contracts.
Earlier this year the High Court’s decision in James Waste Management LLP v Essex CC addressed a range of issues on a challenge to the variation of a long-term waste management contract. The Court considered whether the variation was a substantial modification, either because it changed the nature of the contract; or because it expanded the scope of the contract considerably; or because it shifted the economic balance in favour of the contractor. As well as the substance of the law, James Waste is important because of its approach to the burden of proof. The Court also considered whether the variation, if substantial, was capable of being justified by the type of change control mechanism contained within the contract, and whether that mechanism had been properly followed. The judgment also has things to say about the ineffectiveness remedy in this context.
Meanwhile, the Procurement Bill is close to completion of its passage through Parliament, and it contains provisions on contract modification which differ in various respects from those in the existing Public Contracts Regulations. How significant are these differences, and what are the practical implications when it comes to drafting and modifying public contracts, publishing contract change notices, or bringing or defending challenges to such modifications?
It is not always straightforward to apply the procurement remedies regime in modification cases. What counter-factual is to be applied in deciding whether a claimant has suffered loss and what remedy they should have? The claimant in James Waste was an existing beneficiary of separate contractual arrangements, which might have continued but for the challenged variation, rather than a potential performer of the varied contract. No one questioned its standing in the litigation, but might the position be different if a court were now to apply the test of who is an economic operator laid down in the recent case of International Game Technology PLC v Gambling Commission?
The seminar will aim to identify and answer some of the key questions for procurement lawyers.
Nigel Giffin KC and Stephen Kosmin appeared for the claimant in James Waste. Jen Coyne was one of the team of counsel representing the claimant in International Game Technology.
To book your place on this conference please email RSVP@11kbw.com with the delegate name, firm, email address.
Please note that spaces for this event are limited and would advise early booking.
You will be then sent a confirmation email of your place.
