For our March edition of public matters:
• Steven Brunning summarises the main points of the new public procurement regime and provides a summary of the latest case on lifting the automatic suspension in relation to procurement challenges
• Anja Beriro explores the latest public procurement policy notes issued by the Cabinet Office
• Neil Walker provides two interesting articles on some important property related cases.
Japan: Effect of the reverse charge on foreign enterprisesAlex Baulf
The Consumption Tax Act and other relevant laws and regulations were partially amended in 2015 introducing a new taxation mechanism for consumption tax, called the “Reverse Charge Mechanism”.
Due to the tax reform, the Services become out of scope under Consumption tax law (before the tax reform, the services provided in Japan were taxable transaction). So foreign enterprises do not have an obligation to file a tax return and pay consumption tax for the services. However in order to obtain a refund of consumption tax on purchases related to providing these services a foreign enterprises need to elect to be a taxable enterprise by filing a notification to the tax office, because only taxable enterprises can file a consumption tax return. Even if the foreign enterprise elects to be a taxable enterprise, as the Services are categorized as out of scope under consumption tax law, there is a high possibility that their taxable sales ratio becomes minimal or even zero thus reducing the creditable consumption tax on taxable purchases potentially to zero. In order to fix this, the National Tax Agency circular 11-2-13-3 allows that under the itemized method, taxable purchases relating to the Services are categorized as “purchases related to sales other than non-taxable only”. Therefore if foreign companies elect to use the itemized method and meet the "Recording requirement for the itemized method", they will be able to take a credit for the full amount of consumption tax on taxable purchases related to the Services. Without adopting this method, foreign companies might potentially be unable to obtain a refund for consumption tax paid, thus increasing the costs of doing business with Japanese companies.
MTBiz is for you if you are looking for contemporary information on business, economy and especially on banking industry of Bangladesh. You would also find periodical information on Global Economy and Commodity Markets.
Signature content of MTBiz is its Article of the Month (AoM), as depicted on Cover Page of each issue, with featured focus on different issues that fall into the wide definition of Market, Business, Organization and Leadership. The AoM also covers areas on Innovation, Central Banking, Monetary Policy, National Budget, Economic Depression or Growth and Capital Market. Scale of coverage of the AoM both, global and local subject to each issue.
MTBiz is a monthly Market Review produced and distributed by Group R&D, MTB since 2009.
Japan: Effect of the reverse charge on foreign enterprisesAlex Baulf
The Consumption Tax Act and other relevant laws and regulations were partially amended in 2015 introducing a new taxation mechanism for consumption tax, called the “Reverse Charge Mechanism”.
Due to the tax reform, the Services become out of scope under Consumption tax law (before the tax reform, the services provided in Japan were taxable transaction). So foreign enterprises do not have an obligation to file a tax return and pay consumption tax for the services. However in order to obtain a refund of consumption tax on purchases related to providing these services a foreign enterprises need to elect to be a taxable enterprise by filing a notification to the tax office, because only taxable enterprises can file a consumption tax return. Even if the foreign enterprise elects to be a taxable enterprise, as the Services are categorized as out of scope under consumption tax law, there is a high possibility that their taxable sales ratio becomes minimal or even zero thus reducing the creditable consumption tax on taxable purchases potentially to zero. In order to fix this, the National Tax Agency circular 11-2-13-3 allows that under the itemized method, taxable purchases relating to the Services are categorized as “purchases related to sales other than non-taxable only”. Therefore if foreign companies elect to use the itemized method and meet the "Recording requirement for the itemized method", they will be able to take a credit for the full amount of consumption tax on taxable purchases related to the Services. Without adopting this method, foreign companies might potentially be unable to obtain a refund for consumption tax paid, thus increasing the costs of doing business with Japanese companies.
MTBiz is for you if you are looking for contemporary information on business, economy and especially on banking industry of Bangladesh. You would also find periodical information on Global Economy and Commodity Markets.
Signature content of MTBiz is its Article of the Month (AoM), as depicted on Cover Page of each issue, with featured focus on different issues that fall into the wide definition of Market, Business, Organization and Leadership. The AoM also covers areas on Innovation, Central Banking, Monetary Policy, National Budget, Economic Depression or Growth and Capital Market. Scale of coverage of the AoM both, global and local subject to each issue.
MTBiz is a monthly Market Review produced and distributed by Group R&D, MTB since 2009.
Outsourcing Procurement In The Public SectorJon Hansen
When the problems of weak institutional capacities, high costs, delays, and high integrity risks are systemic in a government, outsourcing the procurement function may be a sound option to consider, whether as a short-term gap-filling measure or as a longer-term strategic approach. - ADB Report
Related Story Link: https://procureinsights.wordpress.com/2017/03/14/santa-clara-county-exec-jeffrey-smith-agrees-to-interview/
Government may consider anti profiteering clause to ensure benefits of gst re...eTailing India
The government could consider an anti-profiteering clause to ensure the benefits of the goods and services tax (GST) are passed on to consumers and prices don't spike once the levy is rolled out, Finance Minister Arun Jaitley said. The matter will have to be discussed in the GST Council if it comes up as a subject for debate, he said.
"We are still far from that kind of thinking," Jaitley told reporters on Thursday, a day after the Rajya Sabha approved the constitutional amendment that will pave the way for GST.
The greatest Australian competition reforms in 20 years?Martyn Taylor
The Australian Commonwealth Government announced in December 2013 that it will undertake a fundamental review of Australian competition policy. This review is colloquially known as the ‘root and branch’ review. The Review will involve the most comprehensive consideration of Australia’s competition and regulatory framework in 20 years.
This presentation by Denmark (DCCA), was made during the presentations on “Tools for Addressing Competitive Neutrality” held at the 67th meeting of the OECD Working Party No.2 of the Competition Committee on 3 June 2019. More information on the topic can be found at ww.oecd.org/competition/competitive-neutrality.htm.
Economics Class 12 CBSE project on GST (Goods and Services Tax)Harjinder Singh
This is a Class 12 Economics Project as per the guidelines 2019-20, CBSE.
Unit: Macroeconomics
Topic: GST (Goods and Services Tax)
▽ Check out my other projects
▽ Accountancy
• Comprehensive Project - 1: https://youtu.be/4y6LY6__yeA
• Analysis of Cash Flow Statement: https://youtu.be/HCa-HBkpHmQ
▽ Business Studies
• Changes in the import and export patterns: https://www.youtube.com/watch?v=lKHgT...
• Changing role of women: https://youtu.be/lvcn-VQgUG8
• MARKETING MANAGEMENT
◦ Beverages: https://www.youtube.com/watch?v=vJxwn...
◦ Mobile: https://www.youtube.com/watch?v=mUq6H...
◦ Sarees: https://youtu.be/s2erj6tkLHw
◦ Toothpaste: https://www.youtube.com/watch?v=JZll_...
• Principles of Management: https://www.youtube.com/watch?v=HzuZ2...
▽ Economics
• Demonetization in India: https://youtu.be/ksnIU6ewifE
• Government Budget & Its Components: https://youtu.be/Uc9EKqBOXAA
What is the right SharePoint Cloud Strategy for My Business? Sparkhound Inc.
At a recent Lunch & Learn event in Arkansas, Sparky SharePoint Director Cody Gros presents the differences between and benefits of SharePoint Online, On-Premise and Azure IaaS.
Outsourcing Procurement In The Public SectorJon Hansen
When the problems of weak institutional capacities, high costs, delays, and high integrity risks are systemic in a government, outsourcing the procurement function may be a sound option to consider, whether as a short-term gap-filling measure or as a longer-term strategic approach. - ADB Report
Related Story Link: https://procureinsights.wordpress.com/2017/03/14/santa-clara-county-exec-jeffrey-smith-agrees-to-interview/
Government may consider anti profiteering clause to ensure benefits of gst re...eTailing India
The government could consider an anti-profiteering clause to ensure the benefits of the goods and services tax (GST) are passed on to consumers and prices don't spike once the levy is rolled out, Finance Minister Arun Jaitley said. The matter will have to be discussed in the GST Council if it comes up as a subject for debate, he said.
"We are still far from that kind of thinking," Jaitley told reporters on Thursday, a day after the Rajya Sabha approved the constitutional amendment that will pave the way for GST.
The greatest Australian competition reforms in 20 years?Martyn Taylor
The Australian Commonwealth Government announced in December 2013 that it will undertake a fundamental review of Australian competition policy. This review is colloquially known as the ‘root and branch’ review. The Review will involve the most comprehensive consideration of Australia’s competition and regulatory framework in 20 years.
This presentation by Denmark (DCCA), was made during the presentations on “Tools for Addressing Competitive Neutrality” held at the 67th meeting of the OECD Working Party No.2 of the Competition Committee on 3 June 2019. More information on the topic can be found at ww.oecd.org/competition/competitive-neutrality.htm.
Economics Class 12 CBSE project on GST (Goods and Services Tax)Harjinder Singh
This is a Class 12 Economics Project as per the guidelines 2019-20, CBSE.
Unit: Macroeconomics
Topic: GST (Goods and Services Tax)
▽ Check out my other projects
▽ Accountancy
• Comprehensive Project - 1: https://youtu.be/4y6LY6__yeA
• Analysis of Cash Flow Statement: https://youtu.be/HCa-HBkpHmQ
▽ Business Studies
• Changes in the import and export patterns: https://www.youtube.com/watch?v=lKHgT...
• Changing role of women: https://youtu.be/lvcn-VQgUG8
• MARKETING MANAGEMENT
◦ Beverages: https://www.youtube.com/watch?v=vJxwn...
◦ Mobile: https://www.youtube.com/watch?v=mUq6H...
◦ Sarees: https://youtu.be/s2erj6tkLHw
◦ Toothpaste: https://www.youtube.com/watch?v=JZll_...
• Principles of Management: https://www.youtube.com/watch?v=HzuZ2...
▽ Economics
• Demonetization in India: https://youtu.be/ksnIU6ewifE
• Government Budget & Its Components: https://youtu.be/Uc9EKqBOXAA
What is the right SharePoint Cloud Strategy for My Business? Sparkhound Inc.
At a recent Lunch & Learn event in Arkansas, Sparky SharePoint Director Cody Gros presents the differences between and benefits of SharePoint Online, On-Premise and Azure IaaS.
Incredibly strong filament tape is ideal for bundling tubes, sealing cartons, palletizing, unitizing and repairing. The fiberglass strands give the filament tape tear resistance as well as extra strength for holding heavy loads or packages.
Effects of Government Procurement on Prompt Tendering and Supply of Goods: A...inventionjournals
International Journal of Business and Management Invention (IJBMI) is an international journal intended for professionals and researchers in all fields of Business and Management. IJBMI publishes research articles and reviews within the whole field Business and Management, new teaching methods, assessment, validation and the impact of new technologies and it will continue to provide information on the latest trends and developments in this ever-expanding subject. The publications of papers are selected through double peer reviewed to ensure originality, relevance, and readability. The articles published in our journal can be accessed online
The presentation was part of NCVO's skills and information workshops on 7 – 18 October 2013.
The presentation was by NCVO, ACEVO and Candour Collaborations and explores the facts around transforming rehabilitation procurement.
Find out more about NCVO's work on transforming rehabilitation: http://blogs.ncvo.org.uk/2013/01/10/transforming-rehabilitation/
On the 14th March 2014 the House of Commons committee on public accounts report "Contracting out public services to the private sector" was published, and makes uncomfortable reading for those involved as suppliers or procurers. It might be tempting to say this is the reality of the difficulties of delivering public services, and it might instead be the case that procuring services through contracts performs with great variability across all sectors commercial and public.
A conference was hosted by the APM Value Management SIG that looked at those issues in the face, entertained the notion that the solution is in the hands of project teams, from either side, client or supplier/contractor, and sought to prove that case, with both theory and evidence!
The event included the following speakers:
John Heathcote, APM Value Management SIG Chair
Alan Munro (keynote speaker)
Paul Riley, Head of Capital Projects, Leeds Metropolitan University Estates & Contractor partners BAM
John Phillips, BAM Director
Professor Farzad Khosrowshahi, Head of the School of the Built Environment & Engineering
In a bumper edition of Public Matters, we cover:
• the OFT’s recent report into the supply of ICT to the public sector
• further analysis of the new public procurement directive
• a new case on ineffectiveness
• the latest state aid developments, an analysis of PFI savings, case law developments on consultation obligations and recent developments on information sharing.
Sanjeev_Sanyal_Process_Reforms_The_India_dialog_2024.pdfDr. Amit Kapoor
Presentation done by Sanjeev Sanyal, Member, EAC – PM, Government of India on "India’s Process Reforms – Fixing the Nuts and Bolts" at #TheIndiaDialog on March 1, 2024 at Stanford University. The #TheIndiaDialog was organised by Institute for Competitiveness and US Asia Technology Management Center at Stanford University.
#TheIndiaDialog looks at inviting the world’s leading experts and intellectuals in the areas of economics, business, policy, social development, science, technology, art and culture to provide their perspectives and foster an understanding of India. There would be a series of keynote addresses, panel discussions, and fireside chats during the dialog.
Ontario's Auditor General Report on Supply Chain Jon Hansen
Bravo's progress with the Ontario Government implementation referenced in the recent Ontario Auditor General's Report.
Specifically Section 4.3 (Page 662) through to and including 4.3.2 (Page 664):
4.3 New Online Tendering System Not Widely Used
4.3.1 Concerns Raised Regarding The System's Design
4.3.2 Suppliers Now Charged Higher Bid Fees
Also refer to 4.1.6 (Supplier Performance Not Tracked)
This document consists of the Procurement Procedures Manual for Public Procurement in Ekiti State. The document was published by the Bureau of Public Procurement, Ekiti State Nigeria.
Employment law update - Browne Jacobson Exeter - 06 February 2020Browne Jacobson LLP
These seminars are aimed at anyone who deals with employment law on a day to day basis, including HR Managers and HR Directors.
At these events we will present an overview of what we consider to be the most significant developments in 2019, and what they teach us about managing your workforce – together with our practical tips.
You will also hear about what is coming up in 2020, and how you can get ready for what will be another busy year in employment law.
Earlier this year Edward Timpson’s review on school exclusions raised the profile of the practice of exclusions, managed moves and alternative provision. Head teachers and governors are now under increasing scrutiny to conduct the end-to-end process in a fair and consistent manner (and in line with the statutory guidance) to ensure that the best possible outcome for the school, its staff, its pupils and the parents is achieved.
In this webinar, Senior Associate Hayley O’Sullivan, explores the current exclusions landscape, looks at prospective changes to policy and practice and share examples of best practice to help you avoid common pit-falls when it comes to managing exclusions.
Hayley also provides an overview to the existing statutory guidance, proposed developments in relation to managed moves and alternative provision and share her thoughts on the anticipated changes in regulation as a result of the review.
Local authority acquisition and disposal of land - July 2019Browne Jacobson LLP
Ongoing austerity requires authorities to “sweat their assets” and land holdings are a significant focus for the generation of revenue and capital. These slides cover commercial and public law considerations in relation to:
- Powers to acquire land
- Powers to invest through land acquisition including investment purchases
- Potential barriers to disposal
- Powers to appropriate land
- Planning permission
- Powers to dispose of land
- Pre-conditions relating to disposal of land
- A capital receipt or a revenue stream
- Development vehicles and options
- Who do you need to be able to satisfy as to the legality of land transactions
Your employees, their future employers, and your intellectual property - July...Browne Jacobson LLP
Innovation and creativity is driven by your people. How do you as a business encourage innovation, capture the relevant IP assets and reward your innovators? What happens when a key individual leaves the business – how do you ensure that your R&D crown jewels remain legitimately protected? In a market of ever increasing competitive collaboration, setting up the right strategy to ensure the appropriate safeguards are in place and are communicated to your employees is important.
At this Public Sector Planning Club we reviewed:
- Recent developments in planning law, including cases and guidance
- Consideration of the use of planning conditions, including the appropriate use of pre-commencement conditions
- The powers available for stopping up and diverting highways, when these may be used, and points to consider
Browne Jacobson, Deloitte and DoctorLink are pleased to invite you to our first joint health tech seminar with leading industry thought leaders. This will be a practical session, sharing experience from across the NHS and beyond to inform options on how to improve services, break down silos and focus on population health outcomes.
This event is exclusively for Commissioners, GPs, and Policymakers keen to understand how new integrated care systems and models of care can meet the needs of their local population and can be implemented pragmatically and affordably to drive improvement goals and achieve better health, better care and better value.
Education Law Conference Manchester - Monday 10 June 2019Browne Jacobson LLP
Designed to inform, challenge and enliven your perspectives, our packed agenda was designed to provide innovative ideas and fresh perspectives. With a headline session on the management of transgender children needs within a school setting, we aim to provide you with the advice and guidance that the sector currently lacks.
Other topics included:
learning from child death inquests
good governance – so much more than compliance
managing difficult parents and their complaints.
Designed to inform, challenge and enliven your perspectives, our packed agenda was designed to provide innovative ideas and fresh perspectives. With a headline session on the management of transgender children needs within a school setting, we aim to provide you with the advice and guidance that the sector currently lacks.
Other topics included:
learning from child death inquests
good governance – so much more than compliance
managing difficult parents and their complaints.
The IICSA has a number of investigative streams, and one of its areas of focus is Accountability and Reparations. It has already recommended that the Government sets up a Payment Scheme for former Child Migrants, and the Government has acted upon it.
Is a redress scheme the way forward for abuse claims? How might it impact your organisation? We are helping more and more organisations explore the pros and cons of redress schemes so that they can decide whether a scheme is right for them and what the longer term impacts might be.
Our Birmingham Claims Club event will cover the following:
- Civil Liability Act 2018
- Freedom of Information Act requests - including 'Information Law, why is it relevant?'
- Brexit and local government
Our London Claims Club event will cover the following:
- Civil Liability Act 2018
- Freedom of Information Act requests - including 'Information Law, why is it relevant?'
- Brexit and local government
Our Admin and Public Law seminar, chaired by Sir Robert Devereux, former Permanent Secretary for the Department for Work and Pensions was held on Thursday 4 April, covering the following topics:
- 'wearing two hats' - managing the legal risks of conflicts of interest and allegations of pre-determination/bias
- information law update session - freedom of information (FOI) cases, General Data Protection Regulation (GDPR)
- case law update
- judicial review - tactics for dealing with judicial review and case law
In this webinar recording, Selina Hinchliffe, Alex Kynoch, Nick Smee and Helen Jones hold a panel discussion covering some of the key state aid concepts and how this impacts ownership and licensing of intellectual property, both from a commercial partner, public body and university perspective.
Whilst you’ve been distracted with Brexit and what that means for your business, you’ve probably missed some significant changes in the law. In our March forum we covered:
- contract changes (what they mean to your supply chain, customers and suppliers)
- data protection (the challenges of becoming a 'third country')
- legal privilege and internal investigations (practical tips following SFO V ENRC)
- employment law (changes to employment law you need to be aware of)
- banking - your banking covenants (what to be aware of - particularly in the event of a downturn ahead)
- property (end of lease issues for business owners).
For further training and resources visit our webpage - https://www.brownejacobson.com/sectors-and-services/sectors/in-house-legal
Every business, and every in house lawyer, will at some point be involved with an enquiry, an investigation, or potential litigation. During litigation, documents – including emails, attendance notes and reports – which are relevant to the litigation may have to be disclosed if they are not privileged.
So businesses need to know how it can assess litigation risk or conduct an enquiry without creating documents that it then has to produce and which may be detrimental to its position. The law on this issue has recently been considered by the Court of Appeal in two key cases: WH Holding Ltd v E20 Stadium LLP and SFO v Eurasian Natural Resources Corp Ltd.
In this webinar recording, our experts Mark Daniels and Helen Simm provide you with the key information you need to identify these issues when they arise and to know how you can best protect your position.
We are all waiting with bated breath for the Supreme Court decision in CN & GN, a case which will have a huge practical impact on service providers. Previously the Court of Appeal was dismayed about the damages claims, that had been litigated with little regard to, or understanding of, the law and reality of social care practice. Some of the team involved in the case discus what might happen next, and analyse the practical effect for you of the Supreme Court judgment.
Whilst that judgment has been awaited many claims have been on ice, but to fill that gap we are seeing many of our clients being affected by:
- pressure to consider Redress Schemes
- the Independent Inquiry into Child Sexual Abuse
- claims being brought directly against them as fostering agencies
- claims under the Human Rights Act
- issues following the implementation of GDPR.
For further information and training visit our webpage - https://www.brownejacobson.com/insurance
In this practical session we explored the legal duties of directors and the difficulties which they may face. The session focussed on individuals who are directors for public sector companies, including their role, obligations and competing interests which may arise.
At our February planning club we covered the following topics:
- planning performance agreements
- expert evidence in planning inquiries
- certificates of lawful use.
For further information and training visit our webpage - https://www.brownejacobson.com/sectors-and-services/sectors/public-sector
Mental health, capacity and deprivation of liberty case law update, February ...Browne Jacobson LLP
Rebecca Fitzpatrick looks at some of the most recent leading cases in relation to the Mental Health Act and Deprivation of Liberty, including the Supreme Court’s important decisions of 'MM' and 'PJ' which consider the interaction between the Mental Health Act and deprivation of liberty in the community. Rebecca also covered the subsequent case of 'AB' which focuses on the role of the High Court’s inherent jurisdiction in these types of cases, and the recent final report from the Mental Health Act independent review chaired by Professor Sir Simon Wessely.
A process server is a authorized person for delivering legal documents, such as summons, complaints, subpoenas, and other court papers, to peoples involved in legal proceedings.
What is the point of small housing associations.pptxPaul Smith
Given the small scale of housing associations and their relative high cost per home what is the point of them and how do we justify their continued existance
This session provides a comprehensive overview of the latest updates to the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (commonly known as the Uniform Guidance) outlined in the 2 CFR 200.
With a focus on the 2024 revisions issued by the Office of Management and Budget (OMB), participants will gain insight into the key changes affecting federal grant recipients. The session will delve into critical regulatory updates, providing attendees with the knowledge and tools necessary to navigate and comply with the evolving landscape of federal grant management.
Learning Objectives:
- Understand the rationale behind the 2024 updates to the Uniform Guidance outlined in 2 CFR 200, and their implications for federal grant recipients.
- Identify the key changes and revisions introduced by the Office of Management and Budget (OMB) in the 2024 edition of 2 CFR 200.
- Gain proficiency in applying the updated regulations to ensure compliance with federal grant requirements and avoid potential audit findings.
- Develop strategies for effectively implementing the new guidelines within the grant management processes of their respective organizations, fostering efficiency and accountability in federal grant administration.
Jennifer Schaus and Associates hosts a complimentary webinar series on The FAR in 2024. Join the webinars on Wednesdays and Fridays at noon, eastern.
Recordings are on YouTube and the company website.
https://www.youtube.com/@jenniferschaus/videos
Russian anarchist and anti-war movement in the third year of full-scale warAntti Rautiainen
Anarchist group ANA Regensburg hosted my online-presentation on 16th of May 2024, in which I discussed tactics of anti-war activism in Russia, and reasons why the anti-war movement has not been able to make an impact to change the course of events yet. Cases of anarchists repressed for anti-war activities are presented, as well as strategies of support for political prisoners, and modest successes in supporting their struggles.
Thumbnail picture is by MediaZona, you may read their report on anti-war arson attacks in Russia here: https://en.zona.media/article/2022/10/13/burn-map
Links:
Autonomous Action
http://Avtonom.org
Anarchist Black Cross Moscow
http://Avtonom.org/abc
Solidarity Zone
https://t.me/solidarity_zone
Memorial
https://memopzk.org/, https://t.me/pzk_memorial
OVD-Info
https://en.ovdinfo.org/antiwar-ovd-info-guide
RosUznik
https://rosuznik.org/
Uznik Online
http://uznikonline.tilda.ws/
Russian Reader
https://therussianreader.com/
ABC Irkutsk
https://abc38.noblogs.org/
Send mail to prisoners from abroad:
http://Prisonmail.online
YouTube: https://youtu.be/c5nSOdU48O8
Spotify: https://podcasters.spotify.com/pod/show/libertarianlifecoach/episodes/Russian-anarchist-and-anti-war-movement-in-the-third-year-of-full-scale-war-e2k8ai4
ZGB - The Role of Generative AI in Government transformation.pdfSaeed Al Dhaheri
This keynote was presented during the the 7th edition of the UAE Hackathon 2024. It highlights the role of AI and Generative AI in addressing government transformation to achieve zero government bureaucracy
Jennifer Schaus and Associates hosts a complimentary webinar series on The FAR in 2024. Join the webinars on Wednesdays and Fridays at noon, eastern.
Recordings are on YouTube and the company website.
https://www.youtube.com/@jenniferschaus/videos
2. Birmingham Exeter London Manchester Nottingham
0121 237 3900 01392 458 800 020 7337 1000 0161 300 8100 0115 976 6000
www.brownejacobson.com
1
Index
2 – 3 New public procurement regime Steven Brunning
4 – 6 Procurement policy and guidance 2014
Anja Beriro
7 – 10 Tenant in administration - where do I stand on rent?
Neil Walker
11–14 Public procurement – recent case on lifting the automatic suspension
Steven Brunning
15–17 Don’t worry, it’s guaranteed. Or is it?
Neil Walker
Peter Ware | 0115 976 6242 | Peter.Ware@brownejacobson.com
3. 2
The Cabinet Office has just announced that the 2014 EU Procurement Directives which were approved by the EU Council on 11 February 2014, will be published in the Official Journal of the European Union (OJEU) on 28 March 2014. They will come into force on 17 April 2014 and EU member states will have 24 months to implement the new directives into national legislation. The UK is aiming to complete implementation much sooner than this. The Cabinet Office is currently consulting on several of the optional provisions set out in the directives with a view to issuing draft regulations for consultation as soon as possible. Once in force, the new regulations will replace the existing Public Contracts Regulations 2006 and Utilities Contracts Regulations 2006.
The main objectives of the new regime are to simplify the rules, introduce greater flexibility and efficiency and foster innovation in the procurement process. The new regime is also aimed at increasing small and medium enterprises (SME) access to public procurement and enabling sustainability and other societal goals to be incorporated into the procurement process.
Focusing on the public sector directive, the main changes arising from the directive include:
• abolition of distinction between Part A and Part B services and the introduction of a special ‘light touch’ regime for contracts for social, health and other specified services
• less onerous regime for non-central government bodies
• clarification of pre-OJEU notice market engagement rules
• revised and new procurement procedures including reduced timescales and the new ‘innovation partnership’ procedure
• new rules on evaluation criteria including the introduction of ‘lifecycle costing’
• new grounds for exclusion at selection stage (e.g. tax evasion) and self-cleaning provisions allowing mitigating circumstances to be taken into account
• mandatory use of electronic procurement (with extended timetable for implementation allowed)
• incorporation of public-public contract exemptions (covering in-house awards and co-operation between public bodies)
• mutuals exemption allowing the award of certain contracts to be reserved to mutual organisations satisfying particular criteria
• codification of material change rules clarifying when a contract change triggers a duty to put the contract back out to competitive tender.
4. 3
We will continue to monitor the progress of the new regime. Watch out for our future articles and training sessions where we will delve into the detail of the new rules and highlight the practical implications for both contracting authorities/utilities and bidders.
Steven Brunning | 0115 934 2056 | steven.brunning@brownejacobson.com
5. 4
Since the beginning of 2014 the Cabinet Office has been keen to continue its promotion of procurement best practice with a number of new Policy Procurement Notes (‘PPNs’). Some of these do not relate to local authorities but the guidance may still be useful. The main aims are improving the sharing of information within government and continuing to support the inclusion of SMEs. So, in order of appearance:
• PPN 01/14 covers the sharing of confidential information. This PPN only affects central government which includes executive agencies and non-departmental public bodies. This requires drafting in contracts which allows information that the economic operator has reasonably designated as confidential to be shared with other parts of central government. Procurement law states that such information must be kept confidential by the contracting authority (Regulation 43 of the Public Contracts Regulations 2006 (as amended) (the ‘Regulations’). It is an interesting interpretation of the definition of ‘contracting authority’ that is used by the Cabinet Office which is usually very keen to stress the independence and autonomy of executive agencies and non-departmental public bodies
• PPN 02/14 extends the mystery shopper service. This affects all public sector bodies. As well as continuing to respond to requests to investigate procurement processes, Cabinet Office will undertake random spot checks on procurement processes, usually via portals where procurement documents are published. Again, the main aim is to challenge what are believed to be unnecessary barriers to SME participation in procurement exercises and to promote good practice. The PPN doesn’t say what will happen if, during a procurement process, the mystery shopper scheme challenges the approach of a public body. Experience of our clients shows that even the previous mystery shopper scheme had the potential to put the brakes on a procurement exercise because of the time it took for discussion with Cabinet Office. Further detail needs to be given by Cabinet Office so that public bodies are able to manage any spot check appropriately
• PPN 03/14 is an updated version of PPN 06/13 and relates to using procurement processes to promote tax compliance. It only affects central government departments, their executive agencies and non-departmental bodies and requires specific Pre-Qualification Questionnaire (PQQ) questions to be used during a procurement exercise
• PPN 04/14 specifies a new model services contract for central government to use for IT services valued at more than £10million. We assume only for those contracts not procured under a framework
• PPN 05/14 sets out the new fair deal pension arrangements which relate to central government, executive agencies, non-departmental bodies, NHS bodies, maintained schools and academies (for
6. 5
the last two, only for staff in the Teachers Pension Scheme). Staff that are compulsorily transferred to a private sector provider as part of an outsourcing (and arguably these days as part of a public sector mutual) will be able to decide whether they want to stay with their existing public sector pension or not. Previously it was at the discretion of the new employer to set up a broadly comparative scheme. The PPN clearly states that it doesn’t apply to procurement exercises that are already underway.
In addition to Cabinet Office continuing to promote good public procurement practice, the House of Commons, Community and Local Government Committee published the ‘Local government procurement’ report (the ‘Report’) on 24 February 2014. This is the product of an inquiry launched in July 2013 to determine whether policies from both central and local government, the Local Government Association’s (LGA) ‘Procurement Pledge for Local Authorities’ from 2012, for example, were having a positive effect. The conclusion is that some authorities not still not doing enough to try and reduce public spending. In addition to this, collaborative procurement could save an additional £1.8 billion, should be the default option and the LGA should review how collaborative procurement is undertaken and produce best practice guidance. However, collaboration shouldn’t come at the expense of procuring services to deliver local priorities.
Other recommendations include:
• recommending that the government review the Social Value Act 2012 and the Community Right to Challenge provisions of the Localism Act 2011 to see whether they could be revised or better guidance given which would enhance the social value of contracts
• encouraging central government to do more to highlight best practice and to give guidance and training, both around procurement skills generally and the new EU procurement directive. The latter is certainly already being done with the Cabinet Office arranging a number of training days for the public sector in June and July of this year (insert link to registration page). One of the reasons to highlight best practice is improving the accessibility of tender opportunities to SMEs
• local authorities taking a proportionate approach and not ‘gold plating’ procurement processes which increase costs and time and disadvantage SME and Voluntary Service Overseas (VSOs)
• outsourcing exercises ensuring that employees do not receive lower quality pay and pension provision in the private sector and that contracts are used to enhance social value which can include the living wage
• acknowledging that there must be more investment in procurement skills across local authorities so that knowledge isn’t held by a select few. As lawyers, we would hope that this includes client teams being encouraged to use the legal department of the local authority more proactively and as a ‘critical friend’
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• improving the management of contracts, particularly complex, long-term, high value ones. The report was clear that local authorities must do more to ensure that fraud doesn’t become widespread. Currently fraud is not a big issue but there is a concern that it will become more likely, particularly around price fixing, as more services are outsourced. To support this, more needs to be done to allow whistleblowing when necessary.
The recommendations in the Report bring to the surface some of the tensions that local authorities are currently facing. The increased pressure on budgets means that it is absolutely essential that procurement processes are streamlined and undertaken in the most cost effective fashion and that high value contracts are managed more proactively to ensure best value. At the same time, the training which the Report recommends requires upfront investment and in a time of austerity it is hard to focus on long term benefits. However, many of the recommendations show that there is already best practice in some local authorities. It is really important that this is brought together to ensure that local authorities don’t have to reinvent the wheel.
Anja Beriro | 0115 976 6589 | Anja.Beriro@brownejacobson.com
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Where do I stand on rent?
Apart from their numerous other functions and roles, most local authorities and other public sector clients are property landlords of one form or another.
They may let property such as shopping centre, business parks or industrial estates for long term investment purposes but might have become ‘accidental’ landlords having become the proud owners (perhaps through cost cutting, downsizing or merger) of surplus property which might need to be let pending a longer term sale when the market improves
They may be short term landlords of older property intended in the longer term for development purposes.
Issues facing private sector clients can be just as relevant in the public sector. Tenant insolvency is of course an occupational hazard to landlords of commercial property, but in relation to tenant administration many think that the law had swung too far in favour of administrators and given them an unfair tactical advantage and a means of avoiding paying rent.
The ‘current law’… until very recently
Until earlier this year the 2009 case of Goldacre (Offices) v Nortel Networks UK and the 2012 case of Leisure (Norwich) v Luminar Lava Ignite represented the established ‘current law’:
In Goldacre, the lease provided that the rent was (as it so often is, even with modern leases) payable quarterly in advance on the usual quarter days.
The tenant went into administration before the relevant quarter day but the company did not vacate until later (it had though vacated before the end of the relevant quarter).
The High Court held that the rent which fell due on the relevant quarter day was payable by the administrators as an expense of the administration (and was therefore payable in full by the administrators) even though they may cease to use the premises before the end of the period to which the payment relates.
Sounds like good news for landlords doesn’t it?
Yes, but for the fact that in the Luminar case, the High Court held that rent payable in advance and falling due before the administration of a tenant could not be payable as an expense of the administration even if the administrator might retain the property for the purposes of the administration for some or all of the
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period to which the advance payment related (leaving the landlords able only to claim that rent as unsecured creditors in the administration)
As a result of these decisions it became common practice for administrations to be ‘managed’ to take effect after a rent payment date… to give administrators an effective rent free quarter.
Not such good news for landlords then.
It is worth pointing out here that the decisions in these cases can apply to liquidations as well as administrations.
The latest ‘current law’
The pendulum may have swung back as the Court of Appeal case (Jervis and others v Pillar Denton Ltd and others [2014] EWCA Civ 180) relating to the administration of Game Group provides some welcome relief for landlords, at least for the time being.
As always the specific circumstances are relevant, and in insolvency cases the facts are not always entirely straightforward, but here goes…
The Game Group case
Game Stores Group Ltd went into administration on 26 March 2012, having failed to pay the March quarter’s rent (due on 25 March) on 425 leases that it held as tenant (approximately £10m).
Some of the stores were closed, but others were sold to Game Retail Ltd (‘New Game’) on 1 April 2012 pursuant to a business sale agreement.
Under that agreement, New Game was given a licence to occupy the stores by the administrators (pending the negotiation of new deals with the landlords).
Approximately £3m worth of rent remains outstanding in respect of these stores.
Based on the Goldacre and Luminar cases, directions were agreed between the parties that:
1. The rent which fell due on 25 March was not payable by the administrators as an expense of the administration (leaving the landlords to claim that rent as unsecured creditors in the administration process).
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2. Rent that fell due after the administrators’ appointment (when the administrators were using the premises for the purposes of the administration) would be treated as an expense of the administration (and was therefore payable in full by the administrators) even though the administrators may cease to use the premises before the end of the quarter.
Given the importance of the matter, the landlords (Hammerson, British Land, Land Securities and Intu Properties) appealed these directions (in relation to four representative leases) on the basis that the courts had taken a “wrong turn” in the past, leading to a result that did not reflect commercial sense.
The administrators adopted a neutral stance (having the benefit of an indemnity for the unpaid rent from New Game should the Court of Appeal rule in the landlords’ favour).
The issue to be determined was as simple as this: is the ‘current law’ correct?
The Court of Appeal overruled the Goldacre and Luminar cases and held that administrators and liquidators must pay rent for any period during which they retain possession of property for the benefit of an administration or a liquidation.
For these purposes, rent is treated as accruing from day to day and it makes no difference when the rent days actually occur.
This will be welcomed by landlords in both public and private sectors and appears to apply (at least for the time being) a hefty dose of common sense and fairness which ought to prevent abuse by administrators.
Is this the end of the story?
New Game was refused permission to appeal to the Supreme Court but it should be noted that it is likely to ask the Law Lords directly for leave to take the case further. So watch this space
More detail for the keener student (!)…
As a result of this decision, administrators/liquidators will be liable to pay rent as an expense of the administration/liquidation for the period that they use property for the purposes of the administration/liquidation (or, to quote Lewison LJ, for the “period of beneficial retention”).
This is the case even where a quarter’s rent falls due prior to the administration/liquidation taking effect. The same principle applies to the quarter’s rent falling due prior to administrators/liquidators ceasing to use property (so they will not be liable for any rent that relates to a period after they have ceased to use it).
This decision is based on what is known as the ‘salvage principle’. This comes from a 19th century case called Re Lundy Granite Co ex parte Heavan. The principle allows pre-insolvency debts to be elevated to
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expenses of the insolvency to the extent that they relate to property used for the benefit of the insolvency process.
This is an equitable principle and is not affected by the common law rule that rent payable in advance cannot be apportioned under the Apportionment Act 1870. It’s the common law rule which means, for example, that a tenant has to pay the full quarter’s rent to exercise a break clause which falls between quarter days (where the break clause is conditional on the tenant paying all rent due up to the break date).
Other sums payable in advance under a lease (e.g. service charge and insurance) will also be payable as expenses of the administration/liquidation for the period that a property is used for the purposes of the administration/liquidation.
Neil Walker | 0115 908 4127 | Neil.Walker@brownejacobson.com
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Recent case on lifting the automatic suspension
In a recent Scottish case1 the Court of Session granted an application by South Lanarkshire Council to lift a prohibition on entering into a contract for municipal waste services. In considering whether to lift the prohibition, the court applied the principles that have been established in both the English and Scottish courts. The case is therefore relevant for authorities both above and below the Scottish border.
The contract was split into two lots worth £9.5 million in total and had a target commencement date of 1 April 2014. The claimant’s tender for both lots was unsuccessful having been rejected at the quality threshold stage. The claimant received debrief letters disclosing the names of the successful bidders for each lot and including tables showing individual scores against the award criteria for both the claimant’s tender compared to the scores of the successful bidder for each lot. The tables contained some erroneous figures and the claimant complained that the letters also did not contain all of the information required under the Public Contracts (Scotland) Regulations 2006 (‘Regulations’). In particular, the claimant alleged that the debrief letter did not contain (i) a summary of reasons why the bid was unsuccessful or (ii) an explanation of the characteristics and relative advantages of the successful tenderers. It was also asserted that a full breakdown of the scores against each criterion and sub-criterion had to be provided together with a narrative explanation of why the winner scored more heavily in the relevant areas.
The council subsequently sent an expanded version of the debrief letter to the claimant including a full breakdown of scores, corrections of errors and a detailed evaluation summary. The claimant complained that the second letter still failed to include all of the required information. Whilst the council corrected further errors in the table of scores that had been identified it rejected the claimant’s assertion that it had failed to comply with its obligations under the Regulations.
On 31 December 2013 the claimant commenced proceedings alleging a breach of the Regulations which resulted in an automatic suspension being placed on the award of the contract. The council then applied to the court for the suspension to be set aside.
1 Patersons of Greenoakhill Ltd v South Lanarkshire Council [2014] ScotCS CSOH_21
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The court adopted the approach taken by Lord Glennie in Elekta v Common Services Agency2 when considering the relevant test to apply to the application for the suspension to be set aside. In that case, Lord Glennie stated:
“It seems to me that what requires to be considered is the strength of the parties' cases, the balance of convenience having regard, but not overwhelming regard, to the question of whether damages might be an adequate remedy, and the public interest.”
Strength of claimant’s case
In considering the strength of the claimant’s case the court referred to the Strabag3 case in which it was stated that the duty to state reasons involved a duty on the authority to disclose its reasoning:
“In a clear and unequivocal fashion so as, on the one hand, to make the persons concerned aware of the reasons for the measure and thereby enable them to defend their rights and, on the other, to enable the Court to exercise its supervisory jurisdiction.”
In the present case, the court did not agree with the claimant’s assertion that the reasoning provided by the council was vague or incomprehensible and considered that the council had provided the claimant with the characteristics and relative advantages of the successful tenders. The court took into account the fact that the council had placed considerable weight, throughout its evaluation, on its judgment that the successful bidders had provided better and more comprehensive supporting evidence for their tender. It considered that this provided adequate and understandable reasoning for awarding higher scores to the successful bidders than to the claimant.
Secondly, the claimant asserted that the council had made a manifest error in evaluating the successful bidders’ tenders. A key aspect of the quality criteria in the ITT was the recycling of contract waste and bidders were required to provide a Guaranteed Recycling Percentage (‘GRP’), i.e. the minimum percentage of waste delivered by the council that the bidder undertook to recycle during the relevant contract year. It was alleged that the GRPs proposed by the successful bidders must have been too high to be practically sustainable. The ‘manifest error’ test was clearly articulated in the Lion Apparel4 case in which it was stated:
“In relation to matters of judgment, or assessment, the Authority does have a margin of appreciation so that the court should only disturb the Authority's decision where it has committed a 'manifest error.”
2 Which in turn was based on an analysis of English case law
3 Strabag Benelux NV v EU Council [2003] ECR II-138
4 Lion Apparel Systems Ltd v Firebuy Ltd [2007] EWHC 2179
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Whilst the court rejected an overly narrow interpretation of the term ‘manifest error’, it didn’t consider that the claimant had made a very strong case that the council had committed a manifest error. In particular, the court highlighted that the claimant’s argument in relation to the GRPs was based merely on the opinions of its senior managers.
Thirdly, the claimant alleged the council had consistently differentiated between the claimant’s tender on the one hand and the successful bidders' tenders on the other on the ground that the latter had been supported by evidence or by a higher standard of evidence. It was argued that it was not apparent from the Invitation to Tender (ITT) that evidence required to be submitted in support of tenders unless expressly requested. Accordingly, it was argued, the procedure had not been transparent because in evaluating the bids the council had applied a criterion not disclosed to bidders. The court considered that this argument had very little prospect of success. It identified that the ITT stated expressly that higher scores would be awarded to proposals which were supported by a high standard of evidence and that the highest scores would be given to proposals supported by "comprehensive and robust evidence". The court held that it would be wrong to read too much into the use of words such as "evidence", "information" and "details" where they appeared elsewhere in the ITT.
The court also rejected that the claimant’s argument that the two stage evaluation process undertaken by the council (by which the quality criterion was assessed first with price being assessed subsequently) was flawed.
The court therefore concluded that it was appropriate to take strength of the claimant’s case into account that the effect of so doing favoured the making of an interim order bringing the prohibition on the council entering into the contract to an end. This was because (a) the negative consequences of such an order are not likely to outweigh the benefits if the action is ultimately going to fail, and (b) the probable consequences of making an interim order were likely to be beneficial to those who would be adversely affected by leaving the prohibition in place pending the outcome of an unsuccessful challenge.
Balance of convenience and public interest
The court held that the balance of convenience and the public interest favoured the granting of an order bringing the suspension to an end. It was considered that there were clear advantages to the council and to the public in the certainty of having in place, with effect from the expiry of the current arrangements, a contract on the terms desired by the council when it invited tenders. The court noted that for various reasons, not least the council’s quality assessment, it would be difficult for the council to enter into a temporary contract with the claimant, and accordingly the defendant would be put in the position of having to purchase the services it required in the market, with consequent uncertainty and risk of additional cost. The court considered that the remedy of damages would provide the claimant with an adequate remedy if its
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claim succeeded. Whilst noting that proof of loss may not be straightforward, the court asserted that it accustomed to undertaking the task of quantifying loss of a chance and so was not deterred by this point.
Comment
This case continues the growing line of case law that has seen many automatic suspensions set aside. The court was clearly not impressed with the weak arguments put forward by the claimant and the case reiterates the very high threshold that needs to be met for a claim to succeed on the ‘manifest error’ argument. Strong objective evidence is likely to be required to stand any chance of meeting this threshold.
Conversely, the threshold for a contracting authority succeeding in arguing that the public interest favours the setting aside of a suspension order appears to be very low. In the present case, the court felt this threshold was met due to the need for certainty in having a contract in place and the risk of the contracting authority incurring additional costs.
The case is also interesting in confirming that a court will not be deterred from holding that damages would be a sufficient remedy even where the calculation of the amount of such damages might be a difficult exercise.
Steven Brunning | 0115 934 2056 | steven.brunning@brownejacobson.com
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Leases and guarantees
Local authorities are often keen for job creation, regeneration and innovation purposes, to attract newly formed ventures and small and medium enterprises (SMEs) to take up space in their buildings.
Whatever the circumstances for the letting, like their private sector landlord counterparts, securing the income stream from regular and punctual rent payments and compliance with tenant covenants is always important to local authorities and other public sector bodies.
Whether the tenant is a newly formed entity, has a short and relatively untried and un tested track record, or if there are other concerns over covenant strength, a prudent landlord will often require the tenant’s lease obligations to be secured, most commonly by way of rent deposit deed, or by a parent company guarantee (if there is a parent company) or personal guarantee, and sometimes (although rarely in our experience) a combination of the two.
Where an existing tenant requests landlord’s licence/consent to assign, a landlord will, depending upon the terms of the lease and the provisions of the Landlord and Tenant (Covenants) Act 1995, often be entitled to call for the outgoing tenant to enter into an authorised guarantee agreement, or AGA , to provide a degree of security against incoming tenant default.
The outgoing tenant stands as guarantor of the incoming tenant’s liabilities under the lease until the next lawful assignment.
Sometimes the guarantees are obtained from two or more individuals or companies - their liabilities may be joint and several.
But just how secure are those guarantees and AGAs?
A couple of recent Court of Appeal cases dealing with lease variations and forged signatures highlight some of the potential pitfalls which could apply to parent company, personal or AGA guarantees.
What is the effect of a lease variation on guarantors?
Topland Portfolio No 1 Ltd v Smiths News Trading Ltd [2014] EWCA Civ18
The Court of Appeal upheld a first instance decision and confirmed the long-standing principle of guarantee law that a guarantor is discharged from liability where the parties to the principal contract agree to vary it, unless the guarantor has consented to the variation or the variation is patently insubstantial or incapable of adversely affecting the guarantor or the guarantee agreement provides to the contrary.
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These principles are sometimes referred to as the rule in Holme v Brunskill, a less than recent case (from 1878) which also establishes that the person seeking to enforce the guarantee has the burden of proving that a variation is insubstantial, or not prejudicial to a guarantor.
This is a complicated case but the basic facts involved a lease with an absolute prohibition against tenant’s alterations and a licence for alterations, to which a guarantor was unusually not a party, and which increased the liability of the tenant under the lease in relation to repair and reinstatement.
Most modern leases will deal specifically with circumstances that might otherwise release a guarantor, and most landlords will join guarantors into supplemental leasehold documentation such as licences for alterations and deeds of variation.
The belt and braces approach is often best.
This case concerned a lease granted in 1981 with wording which would be considered inadequate in the present day. However if you hold leasehold property in your portfolio whatever the date of the lease it’s well worth checking how robust the guarantee provisions really are and whether anything might have happened in the past which would have inadvertently released any guarantors.
Joint and several guarantees… and proper execution
Harvey v Dunbar Assets Plc – Court of Appeal [2013] EWCA Civ 952
A case involving a joint and several guarantee clause made by four guarantors, albeit in a banking case rather than in relation to a lease.
Unfortunately the signature of one of the proposed guarantors was alleged to have been forged – this matter has not yet been fully determined. The court was asked to decide whether one of the guarantors would be relieved of liability if one of the other signatures proved to be forged.
The court held that the guarantee was a single composite guarantee under which all four guarantors would be jointly and severally liable and so in the absence of any clear language to the contrary all four signatures were an essential pre-condition to the liability of each individual guarantor who signed the document.
In this case modern drafting did not work. The deed contained a clause which attempted to preserve the liability of each individual guarantor where the obligations of any co-guarantor were invalid or unenforceable but the court held that the wording was not sufficient on the facts of this case.
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This is likely to increase lenders’ caution in the banking world in particular in relation to establishing that each co-guarantor has received independent legal advice and has properly executed the guarantee documentation.
The problem with lack of proper execution could be equally applicable to a guarantee agreement in respect of a lease where there are co-guarantors. You’ve been warned!
Neil Walker | 0115 908 4127 | Neil.Walker@brownejacobson.com