David Allen Green, a procurement lawyer, has looked at the
contract with Curevac and drawn some conclusions, assuming that the contract with AstraZeneca is very similar.
Quote:
But it would not be a slam-dunk for AstraZeneca if there is actually such a [best efforts] provision. The “best efforts” term goes to establishing capacities, not to whether those capacities are diverted to supplying another customer. A best reasonable efforts provision is not a general excuse and its application can be tightly defined — the commissioner would have a good point as well.
So, on the basis of a published contract with another supplier, it looks as if AstraZeneca would have the benefit of a best-efforts clause, but it also looks as if that provision offers only limited protection. And that is why both sides believe they are in the right, because they are saying slightly different things.
This episode shows why such public-supply contracts should not be confidential, because without sight of the contract, it is impossible to know who is right, about what. There is no good reason for secrecy; public supply contracts should always be in the public domain.
[Ursula von der Leyen has also said AstraZeneca's contract with the EU should be made public.]
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https://www.ft.com/content/c4cde78a-...1-73be810249cf
More detail available on the author's personal blog:
https://davidallengreen.com/2021/01/...ply-agreement/