February’s case digest includes a Scottish Court of Session ruling on a challenge against a procurement decision of a health board following a disputed mini competition process, and a General Court order holding that there is no need to adjudicate an appeal against a European Parliament tender decision due to the applicants’ action being devoid of any objective.
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Scottish Court of Session ruling on challenge against procurement decision of Greater Glasgow Health Board (Johnson & Johnson Medical Limited v Greater Glasgow Health Board)
The Scottish Court of Session has handed down a ruling on an action brought by Johnson & Johnson Medical Limited (J&J) against the Greater Glasgow Health Board (the defenders) challenging a procurement award decision.
In June 2010, the National Health Service (NHS) in Scotland procured two separate framework agreements for the supply of both hip and knee products. J&J was included in both framework agreements. Under the agreements, certain NHS bodies (participating authorities) could call for products from parties to the agreements. They could call for supplies by following a mini competition process, but were not required to do so. In July 2013, the Greater Glasgow Health Board invited J&J to submit a tender in a mini competition for both hip and knee products. J&J’s combined tender for hip and knee products had the highest score, but J&J was only awarded the contract for knee products.
J&J brought an action challenging the procurement award decision on the grounds that the tender specifications did not specify how the options would be chosen, that the mini-competition was run as a single process and that the process was vitiated by scoring and procedural errors. The Court found that J&J’s challenge raises disputed questions of fact which could only be resolved on proof. Therefore, the parties will be allowed a proof before their submissions are answered, to start on 27 September 2016.
General Court orders no need to adjudicate appeal against European Parliament tender decision (Cofely Solelec and others v Parliament)
The General Court has issued an order, dated 10 December 2015, declaring that there is no longer any need to adjudicate the action brought by Cofely Solelec, Mannelli & Associés SA and Cofely Fabricom (Case T-224/15) against a European Parliament tender decision rejecting the applicants’ bid in a public procurement procedure to extend and modernise the Konrad Adenauer Building in Luxembourg. The applicants lodged their action on 6 May 2015, claiming that the European Parliament had failed to comply with the tender’s selection criteria concerning financial and economic standing and technical and professional standing, and also with its award criteria. The applicants submitted that the successful tenderer’s bid was abnormally low.
The General Court found that, on 20 May 2015, the European Parliament did in fact partially annul its tender procedure. It therefore considered that the applicants’ action was devoid of any objective and so there was no need to adjudicate on it.
General Court dismisses appeal against Commission procurement decision (PRIMA v Commission)
The General Court has handed down its judgment on an appeal by PRIMA relating to a decision of the European Commission to award a procurement contract to another bidder. The General Court dismissed the appeal in its entirety, noting that the Commission had not infringed its duty to provide information. The General Court also found that the Commission had correctly applied the award criteria.