Blue Light Legal

BLUE LIGHT LEGAL

Welcome to the fourth issue of Blue Light Legal, a quarterly bulletin looking at the latest legal developments and know-how across the areas of commercial contracts, procurement, outsourcing, technology, data protection, employment and construction relevant to the fire and rescue sector.

We hope you enjoy this issue. If you have any comments or feedback, please get in touch with Saman Anwar.

 

Commercial Contracts

• Managing Supplier Financial Distress - the insolvency of a key supplier can have a significant (and potentially catastrophic) impact on a customer’s business. It can affect the customer’s ability to meet obligations it owes to its customers and other counterparties as well as regulatory requirements. All customers should ensure that they have robust internal processes and controls in place to monitor their supply chain risk and ensure their operational continuity. Our blog sets out the financial distress protections a customer can include within its supplier contracts.
• Strategic partnerships - there is a significant shift towards businesses exploring other ways of working with their supply chains that go beyond the traditional customer/supplier model. Factors such as a lack of suitable incumbent suppliers, shortages in raw materials, energy uncertainties and bottlenecks in the supply of key components such as semiconductors means that a new agility is required. Moreover, the need to invest heavily in new technologies, particularly in industries that tend to take a generational approach to new technology or discoveries, creates additional incentives for joint efforts. Our blog sets out the contractual issues to consider and how to address them when thinking of a strategic partnership.
• Payment Terms Guide - navigating the intricate web of contractual obligations across diverse jurisdictions is a challenge for any lawyer crafting a commercial agreement. Beyond the legal terms expressly set out in a contract, a broad range of implied terms may also apply to the document, impacting how the contract operates. In this guide, curated by DLA Piper’s contract law teams across jurisdictions, we shine a spotlight on the ‘payment term' clause that sets out the number of days for payment - a clause of vital importance and one that requires careful consideration in the drafting, regardless of which jurisdiction applies to the terms of the contract. You can request a copy of the guide here.

 

Procurement

An update on the Procurement Act 2023:

• Current status and new guidance – the Government Commercial Function has issued its latest update on the Act. In summary:
  • the draft Procurement Regulations 2024 were laid in Parliament on 25 March – they will be debated before being signed into law;
  • further regulations will be published in due course;
  • a summary is given of the responses (as published on 22 March 2024) to the two-part consultation on the draft regulations held last summer;
  • the Government continues to plan for commencement of the new regime in October 2024 - the go-live date will be announced shortly and formalised by its own distinct Commencement Order laid before Parliament; and
  • the first suite (with more to come) of guidance documents has been published on 26 March) on the ‘Procurement Act 2023 guidance documents’ page on gov.uk.

• Competitive Flexible Procedure Toolkit – as October fast approaches, public bodies, and suppliers to them, need to be ready for the Procurement Act coming into force. The Act’s new competitive flexible procedure sets out what is required to run a successful procurement. Our team have designed an interactive toolkit that distils it down into 18 practical steps to guide you through the whole process. Our new Procurement Act 2023 Competitive Flexible Procedure toolkit translates legal complexity into commercial clarity to help you understand the new rules and run a successful procurement. We have broken the steps down into three phases: (1) planning stage; (2) preparation stage; and (3) undertaking stage. You can use the dropdown menu to go to the relevant stage and easily navigate to the required step. Each step includes the key points to consider, details of required notices, links to relevant legislation and guidance and DLA Piper insight.
• Knowledge drops - the Knowledge Drops produced by the Government Commercial Function comprise a series of on-demand videos designed to provide a high level overview of the changes to the procurement regulations and are aimed at those who have regular interactions with procurement and would need some material level of understanding of the new legislation. You can view and access all the Knowledge Drops and factsheets on the Transforming Public Procurement webpages.
• Innovation guidance from Cabinet Office and Government Commercial Function - the Cabinet Office and Government Commercial Function’s recently published Our innovation ambition: Delivering better procurement across the public sector setting out how the Act will enable contracting authorities to innovate in procurement and deliver greater innovation. Our blog provides a summary of the paper.
• Exclusion and debarment of suppliers - some of the most significant changes in the Act is the new regime for excluding suppliers from procurements and the introduction of a debarment list. Our blog gives an overview of these key changes. Contracting authorities need to be aware of these changes as: (i) they need to be prepared for how suppliers will react to issues which could lead to exclusion; and (ii) they need to understand the onus on authorities to either exclude or exercise their discretion as to whether to exclude.
• Contract Management under the Act - the Act introduces a greater focus on supplier performance, including new rights to terminate existing contracts. Contracting authorities need to understand their new rights and obligations. Equally, suppliers need to understand the potential impacts on their existing contracts and their ability to compete for future contracts. Click onto our blog here which provides further insights.

 

New PPNs:

• Improving Transparency of AI use in Procurement - the Cabinet Office announced the publication of Procurement Policy Note (PPN) 02/24: Improving Transparency of AI use in Procurement. This PPN provides optional questions to help identify the use of artificial intelligence in procurements and in the delivery of government services. The PPN’s content applies to all Central Government Departments, their Executive Agencies and Non-Departmental Public Bodies, and states that other public sector contracting authorities may wish to apply the approach set out in the PPN. Appendix A to the PPN sets out some available guidance and best practice information and Appendix B contains example text for AI disclosure questions for use in an invitation to tender.
• Updated Selection Questionnaire - the Cabinet Office announced the publication of Procurement Policy Note (PPN) 03/24: Standard Selection Questionnaire (SQ). This PPN updates the Selection Questionnaire (SQ) and the accompanying statutory guidance, and in doing so replaces PPN 03/23. The new PPN applies to all contracting authorities in England, and contracting authorities in Wales and Northern Ireland that exercise wholly or mainly reserved functions, in each case when undertaking above threshold procurements within part 2 of the Public Contracts Regulations 2015. As to timing, the revised standard selection questions and any other changes in the PPN are to be in use at the latest by 3 months after the publication date but can be used immediately.
• Carbon Reduction Contract Schedule – PPN 01/24 Carbon Reduction Contract Schedule was published in January. The Cabinet Office has developed a standard Carbon Reduction Contract Schedule that is intended to be considered alongside broader sustainability obligations and included, where relevant to the subject matter and proportionate, in Government contracts. The schedule document itself sets out an indication of what should be considered in order to determine relevance and proportionality.

 

Technology

• AI ChatRoom - DLA Piper has developed AI ChatRoom, a captivating series of conversational videos that helps organisations understand the rapidly evolving landscape of artificial intelligence laws and regulations. We hope you will join our industry-leading legal professionals and thought leaders as they share their insights in such areas as litigation, compliance, public policy, and digital health – always asking about the steps organisations may consider in this changing world.

 

Data Protection

• EU and UK: the importance of data processing agreements - in the evolving legal landscape of data protection, several decisions by data protection regulators and courts across the EU and UK underscore the importance of proactive GDPR compliance from a contractual perspective. These issues are being scrutinised more closely by regulators in the event of a data breach or data subject complaint.  We have summarised in our blog some pertinent recent decisions and highlight, as a key takeaway, that regulators and courts will enforce GDPR requirements against both controllers and processors. In that light, organisations should re-evaluate and strengthen their contractual frameworks to ensure contracts align with data protection requirements and safeguard against potential pitfalls. In the UK, it is also particularly worth noting that all contracts relying on the old EU SCCs for UK transfers should have now been updated to either the UK IDTA or UK Addendum as the deadline for this was 21 March 2024.  
• New data protection fining guidance - following the threat of significantly larger penalties since 2018 (the enhanced fines under the General Data Protection Regulation as compared to the legislation that went before), organisations have asked us time and time again, “what is my financial risk for data protection non-compliance in the UK?”. The publication of the Information Commissioner Office’s new fining guidance offers some clarity on this question, including a published methodology the ICO will use to calculate any fine to impose. Read further on our blog

 

Employment

• Employment law developments – various changes to employment laws come into effect during April 2024. Our blog summarises the changes.
• Changes to the Equality Act 2010 - the Equality Act 2010 (Amendment) Regulations 2023 (Amendment Regulations) came into effect on 1 January 2024.  The purpose of the Amendment Regulations 2023 is to reproduce in the Equality Act 2010 certain interpretive effects of retained EU law which provide protection against discrimination, and which would otherwise have ceased to apply from the end of 2023 because of the Retained EU Law (Revocation and Reform) Act 2023. Please see our blog which provides a summary of the Amendment Regulations 2023.

 

Construction

• JCT Contracts 2024 Edition - JCT has announced that the release of its 2024 Edition of Contracts, which will launch with the Design and Build family of contracts, will take place on 17 April 2024. An online launch event, which will give an overview of JCT 2024 and explain the main changes and features of the new edition, will take place in conjunction with Building Magazine on 1 May 2024. The Design and Build 2024 Contracts will be made available simultaneously across all platforms – hardcopy, JCT On Demand digital, and via the JCT Construct digital subscription service.