There are mixed opinions about how useful it is for the Authority to retain the knowledge and thinking that influenced the project team during the procurement period and especially in the commercial negotiations. Some argue that it is critical to maintain consistency of approach in the post close period whilst others consider that the thinking in the procurement period is irrelevant and the only thing that matters is the final wording in the Contract.
In any event, under the WIDP Contract (Clause 95) it is clear that, except where expressly stated in the Contract, the Contract is the entire agreement between the parties and that it supersedes all prior representations and communications concerning the project. The parties also acknowledge that they relied on no information or warranties, other than those referred to in the Contract when they entered into the Contract53.
It is recommended that a thorough review of the documents produced during the procurement period is carried out shortly after financial close, to ensure that all documents that need to be retained are stored properly (i.e. within a structured, managed filing system). Documents that do not need to be retained should be disposed of safely, taking into account any confidentiality issues.
If the mandate of the Authority's advisers during the procurement expires at financial close, or a set period after close, the Contract Manager needs to take steps to ensure that the expiry does not impact negatively on the Authority's access to knowledge of the Contract. The adviser should be asked to undertake a comprehensive check of its own records and to devise and implement a comprehensive disengagement process that ensures the Authority is in a position to maintain continuity of approach after the engagement ends. This applies even if the Authority is procuring a follow on call-off Contract for ad hoc advice as the Authority will benefit from sharper pricing if other advisers feel able to compete with the mandate against the previous adviser.
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53 This does not apply to any statement made fraudulently or to any provisions that were induced by fraud, for which the remedies available are those available under the laws of England and Wales.