PROCUREMENT ISSUES
FOR LOCAL AUTHORITIES
JAMES FINDLAY Q.C.
2-3 GRAY’S INN SQUARE
Regulation 47(7) – pre-requisites
before issuing proceedings
• Reg 7(a) The economic operator bringing the
proceedings must have informed the operator of
the breach/apprehended breach & intention to
bring proceedings
• Reg 7(b) Proceedings brought promptly & in any
event within 3 months of the date when grounds
for bringing proceedings first arose – unless the
Court considers that there is good reason for
extending that period.
AMARYLLIS LIMITED v HM TREASURY &
OGC BUYING SOLUTIONS
[2009] EWHC 962 (TCC)
• Claim for £11M arising out of furniture
buying on behalf of UK Public Sector
Bodies.
• Application to strike out claim for (a) failure
to give written notice and (b) not within 3
months and in any event not promptly.
AMARYLLIS (1)
• A general reference to a breach of the
regulations is not sufficient.
• The notice must
identify the actual breach complained of.
• Detailed/lengthy particulars are not
required,
particularly if the proposed Defendant has
not responded to requests for information.
AMARYLLIS (2)
When did the grounds first arise?
• Limitation designed to be akin to JR.
• Difference of approach Jobsin:Burkett
• What matters is when the specific breach of the
Regulations actually occurred. That will often be
when the actual decision is made to exclude the
tenderer. Follows approach in Risk Management
Partners v Brent [2008] EWHC 1094.
• In the instant case, grounds arose when an
irrevocable decision was taken to exclude the
Claimant and was so communicated.
AMARYILLIS (3)
Prompt and in any event within 3 months.
• Proceedings were one day within 3
months.
• Court gave detailed consideration to the
delay, and reasons for it. Risk of
alienating an important client is not good
reason. Defendant’s conduct relevant.
• In any event good reason existed. In that
context prejudice to the D was relevant
JB LEADBITTER v DEVON CC
[2009] EWHC 930 (CH)
• Deadlines and late submissions.
• 4 case studies required to be submitted before
the deadline. By mistake when tender
submitted, they were omitted. Claimant tried to
rectify before deadline, but could not by reason
of the security procedures involved in the
process. They were sent by email less than half
an hour later.
• Alleged Council had powers to waive and should
have so done, and acted disproportionately.
LEADBITTER (2)
• Devon had waived strict requirements in respect
of two contractors:
- one had suffered a power failure before
submitting through no fault of theirs (although it
need necessarily have done so) whilst
- another had provided hard copies before the
deadline as they were uncertain whether they
had filed properly online. (Careful not to
discriminate if one far away and one close.)
LEADBITTER (3)
Result
• No discrimination found on application of rules.
• Contrary to Devon’s submissions, principle of
proportionality does apply. (Example of a case of an
obvious error in a tender which should have been
clarified, disproportionate not to do so.)
• But Court will only intervene if decision is unjustifiable
and will have regard to the terms of the tender. More
likely to be disproportionate if there is a failure to
exercise a discretion rather than waive an express term.
• A deadline is a deadline, particularly if tender
documentation so states.
• Danger if you do waive, others might complain
FEDERAL SECURITY SERVICES LIMITED
v NI COURT SERVICE & ANO.
[2009] NIQB 15
• Error discovered in process (about
precision of need to hold a licence to
provide security services), decision to call
off. Challenged.
• Claimant alleged whilst authority entitled in
certain circumstances to discontinue it had
to be proportionate and justified.
Federal Security Services
• Contract award criteria were not
formulated/expressed so as to allow all
reasonably well informed/diligent
tenderers to interpret them uniformly.
• Decision to rerun was proportionate,
particularly given care and consideration
given to it.
• No allegation of improper motivation.
CHANDLER v LB CAMDEN &
OTHERS
[2009] EWHC 219 (Admin)
• A mere 202 paragraphs. JR of decision to establish an
academy. Paragraphs 116.
• Claim refused on standing. Claimant was not an
economic operator, nor were issues of equivalence or
effectiveness raised..
• Neither was there a legitimate interest, to enable reliance
upon rights not directly conferred.
• Parents of school age children have no right to
challenge. No particular interest in challenge, see
paragraph 136.
• Rights were only private law rights, could not be raised in
a JR action (paragraph 139).
• In any event, rules did not apply
Austin (R) v PORTSMOUTH CC
[2009] EWHC 322 (Admin)
Challenge to a CPO seeking to enlist a
procurement challenge as well.
• Challenge dismissed, amongst other reasons,
as
(i) no standing and no legitimate interest
(ii) remedy only in damages in any event
(iii) Amendments to a public contract only
constitute a fresh award if materially different in
character – which had not occurred here.
LIANAKIS C532/06
http://www.ogc.gov.uk/procurement_policy_and_ap
plication_of_eu_rules_procurement_policy_note
s.asp
Procurement Policy Notes/ Quarterly Updates
• There is a clear/significant difference between
selection and award difference of process.
• Selection criteria such as experience and
capability must NOT be used at selection stage.
Lianakis (2)
• First, selection, stage covers minimum levels of
economic/financial standing and/or
technical/professional ability.
• Second, award, stage considers which contract
is the most economically advantageous.
• More advice is likely due soon.
http://www.ogc.gov.uk/procurement_documents_b
est_practice_guidance_.asp