PLC Public Sector reports:
The days of the UK seeing one or two public procurement cases a year make it to court are [sadly/happily*] long gone, and we have already seen 2012’s first significant public procurement cases. In this post, PLC Public Sector sets out its top ten public procurement cases of 2011.
[*delete according to whether you are a public authority or a lawyer advising unsuccessful tenderers]
- At number one, it has to be the Supreme Court ruling on the application of the Teckal exemption to in-house procurement in the UK (see Legal update, Supreme Court ruling on “in house” procurement). Full marks to the London Borough of Harrow for going where Brent feared to tread.
- In second place, we have the Court of Appeal’s deliberations in Sita v Greater Manchester Waste Disposal Authority on the application of the Uniplex judgment and in particular its consideration of the appropriate formulation of the test as to whether a prospective claimant has a sufficient degree of knowledge for the limitation period to begin to run (see Legal update, Court of Appeal confirms that procurement challenge was brought out of time).
- Taking the final place on the podium is Varney, a case which deserves some recognition for the hope it has given that there may be a sensible approach to procurement processes “post Lianakis“. The 2011 Varney decision saw the Court of Appeal hand down a ruling on the designation of criteria and sub-criteria and the required application of weightings (see Legal update, Court of Appeal dismisses appeal about Hertfordshire County Council waste recycling contracts procurement).
- A case finding that a contracting authority has to pay damages is always of interest, and in fourth place is Mears Ltd v Leeds City Council, in which the High Court found that Leeds City Council had breached the public procurement rules in a tender for improvement and refurbishment works for social housing. The High Court found that the council had failed to disclose the weightings applied to certain award criteria or sub-criteria and that this could have affected the preparation of the claimant’s tender (see Legal updates, igh Court ruling on disclosure and time limits in public procurement proceedings and High Court rules that Leeds City Council is liable for damages for breach of public procurement rules).
- Completing the top five is First4skills Ltd v Department for Employment and Learning, the only case to date (that we are aware of) where a court has refused to lift the automatic suspension of a contract award decision (see Legal update, Northern Ireland High Court refuses to lift automatic suspension of contract award).
- To show the other side of the story (and the more usual outcome) sharing sixth place are two decisions where the courts have held that the automatic suspension should be lifted, (see Legal updates, High Court lifts suspension to allow DIFD to award contract for land mines clearance and Northern Irish High Court lifts automatic suspension of Department for Employment and Learning contract).
- In another multiple entry, seventh place is handed to a series of decisions relating to whether a contracting authority should allow tenderers to correct mistakes in the submission of tenders (see Legal updates, High Court dismisses judicial review of Legal Services Commission decision to reject tender, High Court finds no fault in Legal Services Commission’s e-tendering procedure, High Court rules that contracting authority was entitled to refuse to allow tenderer to correct genuine mistake and High Court rejects application for judicial review of Legal Services Commission refusal to allow mistake to be corrected).
- In eighth place is the first ruling on the use of the ineffectiveness remedy. Here the High Court struck out an application by Alstom for a declaration of ineffectiveness of a contract entered into between Eurostar and Siemens for the design, supply and maintenance of high speed trains (see Legal update, High Court strikes out ineffectiveness claim in relation to contract awarded by Eurostar). What are the chances of a successful application for a declaration of ineffectiveness topping the chart for 2012?
- Our penultimate entry sees the Court of Appeal in Northern Ireland dismiss two appeals against separate rulings of the High Court that set aside framework agreements entered into by Northern Irish government departments following breaches of the public procurement (see Legal update, Court of Appeal in Northern Ireland dismisses two appeals against setting aside of framework agreements).
- We complete our top ten on a positive note for contracting authorities – the Court of Appeal decision in Countryliner Ltd v Surrey County Council, which upheld a High Court order to strike out a claim alleging breach of the Public Contracts Regulations 2006 (see Legal update, Court of Appeal dismisses appeal against striking out of public procurement claim).
If you think we have missed an important case worthy of a place in our top ten, or if you disagree with our order, please feel free to submit a comment below!
(We are aware that we have included fifteen cases and not ten, but there are just too many to choose from!)