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ONS Reclassification of Registered Social Landlords as Private Bodies

ONS Reclassification of Registered Social Landlords as Private Bodies

Background

In September 2016 the Office of National Statistics (ONS) announced that it was reclassifying Registered Social Landlords (RSLs) in Scotland as public non-financial bodies for the purposes of the national accounts. This was due to RSLs being subject to public sector control via the Scottish Housing Regulator's (SHR) powers over management, constitutional change and disposals of land. As a consequence of this reclassification, RSL debt would have to be counted as a public liability for the purposes of the nation's accounts. The ONS was

Extending Freedom of Information to the RSL Sector

Extending Freedom of Information to the RSL Sector

In December 2017 Scottish Government produced their third Consultation Paper on extending Freedom of Information (FOI) to the sector with a draft Order which made both Registered Social Landlords (RSL) and RSL subsidiaries subject to FOI when carrying out 'housing activities' as defined in the Housing (Scotland) Act 2010. Responses to that Consultation are set out here

The Scottish Federation of Housing Associations commissioned our firm to provide a technical analysis as part of its response. Links to that response and analysis are set out

Public Procurement: What happens if a Supplier gets into financial difficulty?

Public Procurement: What happens if a Supplier gets into financial difficulty?

Carillion, a key supplier to the UK Government, has gone into liquidation. The impact has been felt throughout the public sector where there is uncertainty over what will happen to the works and services carried out by Carillion under public contracts. Many impacted public bodies will be wondering what they can do in terms of public procurement in order to continue provision of key services.

This blog will examine what options are open to public bodies when suppliers of their public contracts encounter financial

How should you contract with your subsidiary?

How should you contract with your subsidiary?

In the current economic climate, Registered Social Landlords (RSLs) are looking to make savings in their procurement processes in any way that they can. Many of our RSL clients have subsidiary companies which can carry out work on their behalf and for third parties. Where an RSL and its subsidiary are members of a VAT group, significant savings may be made. So how should you contract with your subsidiary?

Although a subsidiary is a separate entity and, as such, contracts between the parent and the

Conditional Performance Bonds v On Demand Performance Bonds

Conditional Performance Bonds v On Demand Performance Bonds

"The name is Bond..."

Employers under construction contracts often try to protect themselves against the risk of loss from a variety of events by asking the contractor for a performance bond.

A performance bond is a form of security provided by a third party, usually a bank or insurance company, guaranteeing the obligations of the contractor under the contract. A bond constitutes a promise that the guarantor (i.e. the bank/insurance company) will make a payment to the employer of a set amount (usually 10% of

Awarding a Public Contract - What Happens Next?

Awarding a Public Contract - What Happens Next?

Registered Social Landlords are 'contracting authorities' for the purposes of the Public Contracts (Scotland) Regulations 2012. When awarding a public contract - what happens next? The Regulations apply to:

- works contracts with a value of £4,322,012 or more;

- supplies and services contracts with a value of £172,514 or more.

Contracting authorities must ensure that when advertising public contracts in excess of these thresholds, evaluating bids and selecting the successful party, they follow the rules set out in the Regulations.

Having identified a contractual

The CDM Regulations 2015 are now in force

The CDM Regulations 2015 are now in force

The Construction Design and Management (CDM) Regulations 2015 came into force on 6 April and replace the 2007 Regulations. They govern health and safety in construction projects. Some of the main changes affecting 'clients' who are commissioning construction work are:

  1. Clients' duties

The client must make suitable arrangements for managing a project which ensure that construction work will be carried out without risk to the health or safety of any person affected by the project. The management arrangements must include how clients will ensure that

Scottish Government consultation on changes to procurement rules

Scottish Government consultation on changes to procurement rules

On 9 February 2015 the Scottish Government launched their consultation on proposed changes to procurement rules. The changes are coming about as a result of a new European procurement directive and the Procurement Reform (Scotland) Act 2014.

The Scottish Government has until 18 April 2016 to transpose the provisions of the directive into Scots law, and this will result in the creation of new procurement regulations. These regulations will also comprise further provisions and guidance on the terms of the 2014 Act.

So what are

The Freedom of Information Act is 10 years old!

The Freedom of Information Act is 10 years old!

The Freedom of Information ("FOI") (Scotland) Act 2002 came into force on 1 January 2005 and creates an entitlement to receive information held by a public authority upon request. The Act applies to public bodies including the Scottish Government and local authorities. However, the provisions of the Freedom of Information Act have never been extended to housing associations.

The Scottish Information Commissioner has recently called for the Act to be extended to cover those bodies which are responsible for social housing. In the Commissioner's Report,

Procurement Reform: Could your Community Benefit?

Procurement Reform: Could your Community Benefit?

The Procurement Reform (Scotland) Act received Royal Assent on 17 June 2014. It sits alongside existing public contracts regulations, and will increase regulation for public bodies seeking to award contracts for works, services and supplies. The Act applies where contracts have a value of £50,000 or more, except works contracts where the threshold is £2m.

Most public bodies have, for many years, sought to include community benefits provisions in their procurement processes, as a way of using their purchasing power to benefit their local area,

Procurement interim orders & public interest

Procurement interim orders & public interest

The case of Glasgow Rent Deposit & Support Scheme against Glasgow City Council and Ypeople (decided on 6 December 2012) highlights the court's reluctance to delay a contract award because of an alleged breach of the procurement regulations where this would be detrimental to the public interest.

GCC tendered for a service providing increased access to housing for the homeless and specifically the provision of a deposit guarantee scheme and temporary furnished accommodation. The pursuer raised the action and asked that the decision to award

LIBOR Rate Fixing Scandal - how does this affect you?

LIBOR Rate Fixing Scandal - how does this affect you?

If you open a newspaper or turn on your television, you are once again bombarded with headlines on yet another banking related scandal - this time LIBOR rate fixing. With the resignation of Barclay's chief executive and more revelations in relation to rate fixing practices by the major banks you may be wondering what it's all about, and how it affects you.

  • What is LIBOR?

The current issues surround the LIBOR interest rate. This is the average rate at which the major banks confirm that

Collateral Warranties - key clauses

Collateral Warranties - key clauses

In basic terms, 3 parties are involved in collateral warranties:

- A contractor

- A beneficiary (third party)

- An employer

Collateral warranties provide a contractual link between a third party (the beneficiary) and a contractor which has carried out certain works or provided certain services for the employer.

So when is it appropriate to use one?

It is often appropriate to expect collateral warranties when:

  • A first purchaser acquires a new build development
  • The employer is the developer and sells the completed site to

Rights of unsuccessful tenderers

Rights of unsuccessful tenderers

The procurement regulations set down the rights and remedies available to unsuccessful tenderers who have suffered or are likely to suffer loss as a result of a breach of those regulations.

Where the aggrieved tenderer can show that a breach has occurred the court can:

  • suspend the process
  • set aside the decision leading to the contract award
  • declare the contract ineffective
  • award damages

However the regulations only apply to works, services and supplies contracts over certain values.

Does this mean that a court action cannot

What are Collateral Warranties? Explaining the Basics

What are Collateral Warranties? Explaining the Basics

What are collateral warranties?
Collateral warranties are contracts which are designed to establish a contractual link between a third party (the beneficiary) and a contractor or consultant who has carried out certain works.

Why are they required?
In the case of a building contract, collateral warranties are a promise from the contractor to the beneficiary that the works have been carried out in accordance with the building contract. If the works have been carried out negligently, the beneficiary has a right of recourse against the

Get the procurement process basics right!

Get the procurement process basics right!

Many of our clients come too late for procurement advice, as they have already received notice of a potential challenge under the procurement regulations. If you are about to embark on a procurement exercise you should ask the following at the outset:

1. What type of contract is it?
The procurement regulations apply to contracts for works, services and supplies. Although it seems easy to identify what constitutes 'work' that isn't always the case!

A good rule of thumb to follow is that maintenance of

Procurement Process: Get the Basics Right

Procurement Process: Get the Basics Right

Clients continue to have a lot of questions concerning the procurement process and rightly so. The risk of getting it wrong can be very costly for an organisation. So just how do you get the procurement process right?

A common pitfall under the procurement regulations is a failure to make the distinction between selection and award criteria. Such failures can be costly, leading to a challenge under the regulations. Although it seems that there is little guidance in the area, there are some useful hints