[2025] EWHC 1160 (TCC)

This is set out in paragraph 17 above. Both sides accept that the GSA is plainly a framework agreement, and does not stipulate any indefinite supply obligation on the part of Avanti. But it goes further than this because of the contractual structure it creates by Clause 2.

Clause 2.3 is worth repeating:

“ Notwithstanding signature of this GSA or the execution of an Engagement Form between us, a binding contract for the sale and purchase of any Goods and/or Services shall only be formed once you accept the Order. EE shall have no liability to you (including, without limitation, any liability to make payment for Goods and/or Services already provided) for such Goods and/or Services until you have received a valid Order in respect of such Goods and/or Services from EE. Acceptance of an Order shall be upon your written confirmation of the Order, or the delivery of the Goods and/or Services to which the Order relates (whichever occurs first)…”

[underlining added for emphasis]

On the face of it, then, an accepted PO is necessary to found any obligation on the part of Avanti to supply the services. In argument, EE sought to diminish its importance on the basis that it was merely an aspect of contract administration or good contract governance, which was not a pre-requisite to contractual obligations. In my judgment this is plainly not so. The words could not be clearer as to their meaning. The argument made by EE here is redolent of the argument made as to what PO1 showed which I rejected at paragraph 37 above. (For the sake of completeness, I should add that I do not consider that EE’s argument here was assisted by paragraph 4.1.1 of Schedule 3 to the SOW which dealt with invoicing, stating that invoices from Avanti would not be paid absent the services being ordered by Engagement Form or Order or other express confirmation from EE. I do not see paragraph 4.1.1 as mere “nuts and bolts” thereby adding to the view of Clause 2.3 as being no more than contract administration.)

In any event, EE effectively recognised in argument, that it would have to look elsewhere for an indefinite obligation to supply because that was not contained in the GSA. That brings us to the SOW.