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Public procurement case digest (January 2013)


PLC Public Sector reports:

Our January 2013 case digest includes the latest on cases concerning undertakings in damages in public procurement claims and the interaction of the information law and public procurement regimes.

Readers may also be interested in our digest of cases from 2012, which provides links to all of our public procurement case digests for 2012, with details of the key cases covered.

Please feel free to submit a comment below or contact us at: if you have any views on the cases covered or think that we have missed a case that should be brought to the attention of public procurement practitioners.

Too early for claimant to have to provide undertaking in damages (Lowry Brothers Ltd and Wilson (t/a A G Wilson) v Northern Ireland Water Ltd, [2012] NIQB 105).

The High Court in Northern Ireland has refused a request by a defendant contracting utility for the plaintiffs, in actions alleging breach of the Utilities Contracts Regulations 2006, to provide an undertaking in damages. The defendant had applied for an order to lift the automatic statutory suspension which prevents the award of the disputed contract. This application has not yet been heard. The court concluded that it was too early in the proceedings to consider whether it was appropriate to require the plaintiffs to provide an undertaking in damages. In accordance with the relevant provisions of the regulations, this could only be considered at the time when the court decides whether to make the requested order. The court also noted that it did not yet have sufficient evidence to make an informed decision and to engage in a proper exercise of judicial discretion.

Most cases surrounding the replacement of injunctions with an automatic suspension have simply concerned the lifting of that suspension (and generally reached the conclusion that the suspension should be lifted). It is interesting to see the case law develop further in this area, particularly in a way that is not so public authority-friendly.

When is a body financed by the state? (IVD GmbH & Co KG v Ärztekammer Westfalen-Lippe, Case C-526/11) (Advocate General’s opinion))

Advocate General Mengozzi has handed down an opinion on a reference for a preliminary ruling from a German court on whether a professional medical association is a contracting authority for the purposes of Directive 2004/18. The AG considered that where national law provides for the professional association to be financed by contributions from its members, but does not fix the amount of the contributions or the manner in which they are spent, this is not sufficient to create a “close dependency” of the professional association on the state such that the association is considered to be “financed, for the most part, by the state” under Article 1(9) of Directive 2004/18.

General Court update: bidder lost fair and square and was also not entitled to copy of winning tender (Cosepuri Soc Coop pA v EFSA (Joined Cases T-339/10 and T-532/10)

The General Court has dismissed appeals by an unsuccessful bidder in a procurement procedure conducted by the European Food Standards Agency (EFSA) relating to a shuttle service contract. The General Court found that the EFSA did not breach the principles of equal treatment and transparency in relation to the information provided to the unsuccessful bidder and that there had been no failure to provide reasons. The court also found that EFSA’s decision not to disclose the successful bidder’s tenderer bid to the unsuccessful bidder was lawful. A successful tender can fall within the scope of the exception relating to the protection of commercial interests and this restriction is integral to the objectives of EU rules on public procurement, which are based on undistorted competition.

Information law does not require live procurement information to be disclosed (Wirral Metropolitan Borough Council v Information Commissioner [2012] UKFTT 0117 (GRC))

While getting hold of the winning tenderer may be where we have seen most crossover between the public procurement and freedom of information regimes, it is not the only area where procurement lawyers will need to get to grips with information law.  In this case, the First-tier Tribunal ruled that draft reports, background papers prepared by political assistants and related council correspondence relating to a council’s procurement exercise did not have to be disclosed under the Environmental Information Regulations 2004.

The Tribunal accepted that the information requested was covered by the “unfinished documents” and “internal communications” exceptions and the public interest was in favour of withholding disclosure. This ensured council officers and political assistants were not subjected to excessive public scrutiny before the final decision on a procurement exercise and a decision on whether to proceed with the proposed procurement was taken. One to chalk up to the “sigh of relief” column for those advising public authorities.

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