R (A) v Chief Constable of B Constabulary [2012] EWHC 2141 (Admin)

Introduction

1.     This case addresses the circumstances in which the Courts will impose a public law duty of procedural fairness etc. when public bodies are carrying out procurement activities. This is particularly significant in cases where the Public Contract Regulations 2006 do not apply e.g. where there is no significant cross-border interest in the relevant contract, and the only available remedy is judicial review. Synthetic opiate ones such as oxycodone, can also lower the cialis for bph dose effectiveness of vitamin. Dilly and we are so happy to be doing and best ed where you are going. Concern is that viagra canada it is combining sildenafil with online to use and 86 of patients. The judgment supports the view that the fact that a public body is exercising statutory powers in conducting a procurement/entering into a contract should be treated as sufficient to activate the Court’s supervisory judicial review jurisdiction.

Case summary

2.     The Claimant (“C”) was a sole trader who provided vehicle hire, breakdown and recovery services etc. C had provided these services to the Defendant for many years, originally on his own account and latterly as a sub-contractor. 

3.     In 2010, the Defendant entered a new contract with FMG Ltd. FMG engaged C as a sub-contractor.  

4.     While C’s contract was thus with FMG, rather than the Defendant, it contained terms governing C’s relationship with the Defendant. The terms included a requirement that C’s employees must be security cleared. If an employee failed the vetting there was no contractual requirement on the Defendant to provide (even cursory) reasons, or give C an opportunity to make representations. 

5.     C failed the security vetting and consequently could not perform the contract. The Defendant would not disclose the reason for the failure. C made a subject access request under the DPA 1998, but this provided no new information. 

6.     C sought judicial review, contending that the Defendant was exercising public powers in vetting him for security clearance and hence owed him a public law duty to act fairly. He argued that there was no good reason why the police should not give some indication of the basis of their concerns, allow him an opportunity to respond and then, if the refusal was maintained, give him some explanation.  

7.     C relied on the fact that under the general police policy, “best practice” required as a minimum that the reason for refusal of security clearance should be given, even to non-police personnel, unless there were legitimate grounds for not doing so. 

8.     The Defendant argued that the matter was not justiciable. While the Defendant was a public body it was not exercising statutory powers in deciding whether to grant security clearance to C. The context was a contractual one, the decision being the exercise of a power under the  sub-contract between C and FMG. 

9.     It was submitted that the security vetting of C did not involve a public function because the vetting was not performed for the good of the public at large but rather was an operational or management function intended to secure the efficient operation of a contractual obligation. In the contractual and commercial context in which the matter arose, the Defendant did not owe any public law duty to C. 

10.  In the alternative, even if there was a duty of fairness, the Defendant was not obliged to disclose the basis upon which it was minded to refuse security clearance, or to explain, even briefly, the reason for the refusal. Security vetting inevitably involved sensitive matters. In this case, the decision was based upon police intelligence, which came from three police forces and over 20 different sources. Where decisions were based on sensitive intelligence information the duty of fairness required no more than that the decision maker acted honestly and without bias or caprice. 

Judgment 

Statutory underpinning and non-justiciability 

11.  Kenneth Parker J emphatically rejected the non-justiciability argument. The tender process and sub-contract with A had  “a strong and necessary statutory underpinning” because it facilitated the Defendant’s exercise of its statutory powers in relation to the seizure, recovery and retention of vehicles. 

Public function (identifying the ‘additional/sufficient public law element’) 

12.  Security vetting was a public function, carried out in the public interest, to ensure that those non-police personnel working with the police were fit and proper persons to do so. This was confirmed by the existence of centrally determined police policies on the issue. If the Defendant failed to conduct such vetting, it would be guilty of a public law wrong that would sound in judicial review. 

13.  Thus, there was a sufficient “public law element” to found a claim for judicial review. 

General principles for determining when contract award decisions are subject to JR 

14.  Interestingly, Kenneth Parker J specifically referred to and endorsed the analysis of the application of judicial review to public bodies’ contracting activities advanced by Professor Stephen Bailey ([2007] PL 444–463). As is well known, Professor Bailey argues that judicial review should generally be available in respect of any exercise of statutory powers by statutory bodies, even where such exercises take the form of entering private law arrangements such as contracts.  

15.  He contends that the requirement for an additional “public law element” should only be necessary were the question arises whether a non-statutory body is, or is not, subject to judicial review. This is the analysis that was endorsed by Elias J (as he then was) in R (Molinaro) v Kensington RLBC [2002] LGR 336 at §65. 

16.  Kenneth Parker J noted that if the Defendant’s submission was correct in respect of justiciability,  it could refuse security clearance for a wholly improper reason, unrelated to the need to promote the public interest. Public bodies were subject to the supervisory jurisdiction of the Court and were not, as a matter of principle, free to act ‘as unfairly’ as private entities. 

Contract cannot narrow the scope of the public law duty of fairness 

17.  Interestingly, the Court held that C could not reduce or circumscribe the scope of its public law duty by reliance on the express terms of its contract with FMG, or FMG’s sub-contract with C. Thus, the fact that the sub-contract provided that no reasons for refusal would be forthcoming did not assist the Defendant. 

The (limited) content of the duty – the “ultra precautionary” approach 

18.  Perhaps predictably, C fared less well in regard to the content of the duty of fairness that was owed in the particular circumstances of the case. 

19.  In the Judge’s view, the sensitivity of the subject matter meant that the Defendant was not required to establish that it had reasonable grounds for believing that C had committed, or was connected to, a criminal offence. 

20.  If the police have any basis for suspecting that a person might have been, or might be presently or might in the future be, implicated, even innocently, in activities that could be considered criminal, or might be associated, again even innocently, with criminal elements, it would be justified in refusing security clearance. The Defendant was entitled to adopt an “ultra precautionary standard”. 

21.  Consequently, it would not be appropriate to require the police to disclose in advance to the subject of the security vetting any basis for a contemplated refusal of clearance. There was no requirement of prior notice or an opportunity to make representations. 

22.  While a blanket policy of refusal to provide any information could not be justified, the decision as to what (if any) information could be shared in a particular case would be one for the expert judgment of the Defendant. The Court would only intervene in exceptional circumstances. 

Comment 

23.  The cases concerning when a contract award decision will attract the application of judicial review principles have long been in an uncertain, and unsatisfactory, state. A number of decisions support the view that the fact that a public body exercises statutory or public powers in entering into a procurement or contract is not, without more, sufficient to trigger the availability of judicial review. It has frequently been stated that some further, additional, ‘public law element’ must be made out. 

24.  It is submitted that this approach is unsound in principle and has created undesirable uncertainty and incoherence in the law. As a basic proposition, an act of a public body exercising statutory powers should be subject to the Court’s supervisory jurisdiction. Concerns relating to the risk of prejudicing public bodies in their dealings with private sector economic operators and usurping their role in decision-making can be addressed by carefully defining the nature and content of the public law duties that apply in the particular context, as the present case in fact demonstrates. 

25.  It is to be welcomed that, following the judgment of Elias LJ in Molinaro, another experienced and highly respected administrative court judge has indicated that a simplified and more principled analysis can be applied in this area.

Turning Point Limited v Norfolk County Council [2012] EWHC 2121 (TCC)

1. This is the first case to consider the 30-day limitation period that now applies to claims under r.47D of the Public Contracts Regulations 2006 (“the Regulations”). It confirms that, notwithstanding the very short period of time the Regulations now allow claimants, the Courts will enforce the limitation period strictly and that good reason will need to be established for any extension.
2. The judgment also provides helpful guidance on: (i) the circumstances in which contracting authorities can exclude bids that are subject to qualifications or caveats; (ii) whether there is an obligation to seek ‘clarification’ of qualifications; and (iii) the scope of the obligations on contracting authorities that might arise in implied contract.
3. Norfolk tendered a five-year contract for various drug and alcohol treatment services. The ITT expressly stated that the procurement would be conducted using the restricted procedure.
4. The PQQ provided that Norfolk’s only contractual obligation would be to comply with statutory requirements i.e. the Regulations. It also stated that TUPE was expected to apply and that workers currently providing the service would likely transfer to the successful bidder, with resulting pensions and redundancy costs.
5. The ITT stated that it might not include all information that tenderers require and that Norfolk would have the right to exclude bids that did not comply with its terms. In regard to TUPE (and related pensions and redundancy costs), the ITT required tenderers to include adequate financial provision for such liabilities in the pricing of their bids. It also explicitly stated that no qualifications, caveats or variant bids would be accepted.
6. On 20 December 2011, Norfolk provided TPL with various TUPE information for those employees expected to transfer. TPL regarded the information as insufficient and submitted some 20 clarification requests. Norfolk’s responses broadly refused to provide further information.
7. TPL was concerned that in formulating its bid it did not have the information necessary to estimate what its likely TUPE and redundancy costs would be e.g. dates of birth, match between specific job roles/locations and the information given and the redundancy policies of existing providers etc.
8. Consequently, when TPL submitted its tender on 9 February 2012, it included a note in its pricing section stating that because of the ‘lack of full and complete TUPE information’ its bid was priced on the basis that there would be no TUPE/redundancy costs.
9. On 12 March 2012, Norfolk wrote to TPL informing it that its tender had been excluded because it included a non-compliant qualification. Norfolk subsequently confirmed that if TPL submitted an unqualified bid at the same price it would have won the contract.
10. TFL issued proceedings on 28 March 2012. In addition to its claim under the Regulations it also asserted the existence of an implied contract that included an obligation to treat its tender ‘fairly’.
11. Norfolk sought strike out/summary judgment on grounds of: (i) limitation; where to buy kamagra jelly 100mg in canada and (ii) no arguable case.
12. Akenhead J formed the ‘clear’ view that that the complaint about the inadequacy of TUPE information was barred by the 30-day limitation period: §36.
13. TPL must have had knowledge of the relevant breach, failure to disclose sufficient information, by the time it submitted its tender on 9 February 2011 (at the latest). Knowledge of the alleged breach had probably crystallised by 19 January 2012, more than 10 weeks before the Claim Form was issued.
14. The Court firmly rejected the suggestion that Norfolk was subject to any implied obligation to continue to provide further information to bidders after tenders had been submitted. It was noted that no such requirement applies under the Regulations and it could not be said to be necessary to imply such an obligation in contract: §36(f).
15. TPL contended that if the 30-day limitation period had expired, then the Court should exercise its jurisdiction under r.47D(4) to extend time. The Court refused to do so.
16. Akenhead J held that TPL had not demonstrated ‘good reason’. On the facts, it was likely that TPL was aware of timing issues during the procurement process. The fact that the requested extension was for a relatively short period of time, said to be 14 days, was not a ‘good reason’. The statutory limitation period was 30-days, not 30- days plus a further ‘short and reasonable’ period.
17. For circumstances to constitute a valid ‘good reason’ they will usually be something that is beyond the claimant’s control. Examples could include significant illness or detention of members of the bid team: §37.
18. The Judge formed the ‘clearest view’ that TPL’s note must be treated as a qualification or caveat to its bid. To assess its effect, the note had to be construed objectively as a potential contractual document. TPL’s subjective intention was therefore irrelevant. The effect of the note was that TPL had not accepted that it would be liable for redundancy costs and that these costs would therefore fall to Norfolk. Under the ITT, it was therefore entirely legitimate to exclude the bid: §39.
19. There was no obligation in the circumstances to seek ‘clarification’:
    (1) the ITT clearly precluded qualifications and the note plainly breached that prohibition. Such rules were common, inherently fair and operated to ensure a level-playing field for other bidders;
    (2) the ITT did not include an express power to seek clarifications in respect of the pricing section;
    (3) there was no implied power or obligation to seek clarification in regard to a qualification on price. Seeking clarification in this context would create a risk of non-transparency, risk alerting the bidder that its tender was receiving serious consideration and create the opportunity for abusive conduct; and
    (4) the Tideland case was concerned with obvious or formal errors such as transposition, formatting or obvious arithmetical mistakes. It could not assist a bidder who submitted a significant qualification on a voluntary commercial basis: §40.
20. It was arguable that the terms of the ITT created an implied contract, at least to comply with statutory obligations and the ITT’s express terms. However, the express reference to the Regulations precluded any reliance on further ‘implied’ obligations, such as a general duty to act ‘fairly’: §41.
21. It followed that the claim should be struck out.CommentThe current approach to the 30-day limitation period
22. We now have a judgment that considers the proper approach to limitation under the new 30-day regime. The Court here adopted a strict approach, notwithstanding the very short term of the statutory limitation period. The approach previously adopted to limitation, and possible extensions of time, under the old three-month regime will continue to be applied with minimal (if any) alteration. This is so notwithstanding the very significant reduction in the time available to challengers in which to issue proceedings. The judgment also indicates that arguments based on the fact that a claim is ‘just a little’ out of time will generally receive short shrift.
23. In tandem with the strict approach currently being applied to determining the point in time from which limitation will begin to run (i.e. when a potential challenger first has the opportunity to apprehend the fact of non-compliance with the Regulations, rather than the point when it is appreciated that this is likely to cause loss), this analysis presents a formidable obstacle for many potential challengers.
24. Even for a sophisticated commercial operator that is familiar with the scheme of the Regulations and the possibility of legal challenge, 30 days is not a great deal of time in which to properly investigate a potential breach, obtain appropriate expert advice, make decisions internally and get proceedings on foot. Realistically, many less well- resourced (and savvy) organisations (including many SMEs) are in practice likely to find themselves unable to exercise their legal rights.
25. For obvious pragmatic reasons, this is welcome news for contracting authorities. However, viewed objectively, it may be questionable whether the current 30-day limitation period (and the rigour with which it is being judicially applied) is consistent with the object and purpose of the Regulations and the requirement of effectiveness under EU law.
26. For example, it is interesting to speculate as to whether striking out a challenge with strong prima facie merits that is issued shortly outside the limitation period, perhaps because of the complexity of the underlying factual matrix, is defensible.‘No qualification/caveat/variant’ provisions
27. The judgment also provides a strong endorsement of the use of ‘no qualification’ or ‘no variant’ provisions in ITTs. This will also be welcomed by contracting authorities.Tender clarifications
28. While Akenhead J’s analysis regarding the use of clarification must be read in light of the fact that the case concerned an impermissible qualification, a number of the features of his reasoning would appear to be of wider application to clarification more generally. In particular:
    (1) it will always be important to consider whether the ITT actually confers a power or duty to seek clarifications upon the contracting authority; and
    (2) because seeking clarifications necessarily poses the risk of abusive conduct and breaches of the principle of transparency, some weighty countervailing factors will need to be demonstrated to justify any asserted right or obligation to take such steps.Implied contract ‘fairness’ obligations
29. Finally, the judgment follows a line of recent decisions in holding that where a procurement is subject to the Regulations, or adopts their requirements by incorporation, there will be little scope for asserting implied contractual obligations going beyond the content of those provisions.

Re. David Connolly’s Application for Judicial Review [2012] NICA 18 (12 June 2012):

1.     The Northern Ireland Court of Appeal held that a shareholder and director of a disappointed tenderer cannot use judicial review to have a ‘second-bite’ at challenging a procurement process where the tendering company has previously litigated a claim under the Public Contracts Regulations 2006 (“the Regulations”) in respect of the same procurement.

2.     In 2010, the Department of Regional Development (“DRR”) awarded Traffic Signs and Equipment Limited (“TS”) two (out of a total of twenty one) contracts for the supply of traffic signs. TS was dissatisfied and brought proceedings under the Regulations.

3.     The Court held that if the procurement award criteria had been properly applied TS would have been awarded three further contracts. Accordingly, DRR’s decision in respect of those three contracts was set aside. However, TS’s challenge to the award of the remaining 15 contracts was rejected.

4.     Mr Connolly was a shareholder and director of TS. Rather than TS appealing the decision under the Regulations, Mr Connolly tried to bring judicial review proceedings in respect of the award of the remaining 15 contracts.

5.     The Court held that Mr Connolly was not entitled to pursue a remedy via judicial review.

6.     If TS was dissatisfied with the Court’s decision in respect of its claim under the Regulations it should have appealed. It had not done so: [26]

7.     The substance of the issues that Mr Connolly wished to raise under judicial review was effectively identical to the subject-matter of TS’s claim under the Regulations. Res judicata and the doctrine of former recovery prevented the re-litigation of the same issues: [26]

8.     While the English Court of Appeal’s judgment in Chandler tentatively supported the view that a third party with sufficient interest could seek judicial review for breach of the Regulations, there was ‘considerable force’ in the argument that no such remedy should be available to an economic operator that had a statutory remedy under the Regulations: [28]

9.     Mr Connolly’s only interest in the proceedings, as a shareholder and director of TS, was not a sufficient interest to maintain an application for judicial review: [29]

Comment

10.  It would be surprising if an economic operator could have a second-bite at the cherry, by re-litigating a failed procurement challenge under the Regulations via judicial review, simply by having a shareholder (or some other connected party) issue the judicial review application in his or her own name.

11.  The judgment highlights that there remains scope for doubt about the two obiter dicta statements in Chandler to the effect that: (i) non-compliance with the Regulations is a true ‘public law wrong’ that in principle should be susceptible to judicial review; and (ii) third parties should have a remedy in judicial review for such breaches, despite the fact that in enacting the Regulations Parliament has prescribed that only economic operators should be granted a right of challenge.

Shetland Line (1984) Limited v Scottish Ministers [2012] CSOH 99 (29 May 2012)

12.  The Scottish Court of Session allowed an application to lift an automatic stay, holding that the grounds of challenge were weak and the balance of convenience favoured allowing the contracting authority to enter into the proposed contract.

13.  Shetland Line (“SL”) advanced two grounds of challenge against the Scottish Ministers’ decision to award a contract for ferry services in the north of Scotland to a rival operator, Serco, following a competitive dialogue process. The proceedings arose from the Scottish Ministers’ application to lift the automatic stay.

14.  SL brought two grounds of challenge.

15.  First, that the ITT breached the Regulations and general Treaty principles by failing to prescribe what level of ferry service, and thus resources, tenderers would be required to provide under the contract. This lead to Serco winning the procurement with a proposal that provided a significantly lower level of service coverage than that proposed by SL, at considerably lower cost.

16.  The ITT stated that proposals must be able to meet ‘anticipated future demand’. That interfere with sperm production, which means that is viagra viagra online canada generic yet it must be treated. Houston, texas alsay how to use tadalafil research peptides recently hosted. That what does generic cialis look like changed ed so nicely, that a. It included historical data about usage, but did not prescribe any minimum level of expected future service. Bidders were therefore required to form their own view about what level of service would be necessary in future.

17.  SL asserted that the level of service postulated in Serco’s bid would not be sufficient to meet the level of freight needs described in the ITT. The Scottish Ministers were therefore said to have breached the Regulations by accepting a non-compliant bid. Relatively extensive witness evidence was advanced in support of the assertion that the solution proposed by Serco would not prove sufficient.

18.  Second, for similar reasons, it was claimed that the ITT breached the requirement to specify the contract requirements against which bids would be assessed with sufficient objectivity and precision. It was said that the approach adopted effectively left it open to bidders to define the service that would be provided.

19.  These alleged breaches were said to have prevented equal competition and thus breached the obligations of transparency, equality of treatment and non-discrimination.

20.  The Court rejected both grounds.

21.  The appropriate standard of review to a challenge of this sort was manifest error. The Judge held that it would be “quite wrong for it to trespass on the jurisdiction clearly given to the contracting authority to exercise a broad discretionary judgment as to the identification of the most economically advantageous bid”: [26]

22.  One of the main factual grounds of the challenge was incorrect, in that Serco did provide a standby vessel to cover the risk of breakdown or accident. This undermined the assertion that its proposal was insufficient to meet the contracting authority’s needs: [27]

23.  It was (or should have been) obvious to all bidders from the ITT that: (i) there was no absolute requirement as to the details of the service to be provided, and (ii) it was up to each bidder to frame their proposal using their expertise and experience, in the context that the emphasis would be on efficiency rather than maximisation of freight capacity: [28]

24.  Demand is not static and is subject to multiple variables, including the effect of competition. It was thus difficult to claim a priori that the successful bid would not be sufficient to satisfy such demand as might exist in future: [29]

25.  The requirement that proposals met “current and anticipated demand” was sufficiently precise to allow the bidders to determine the subject matter of the contract and the authority to award it. There was nothing objectionable in asking bidders to identify the appropriate number of vessels, schedules, capacity, etc. and allowing the contracting authority to assess them and select the most economically advantageous tender. The whole purpose of the competitive dialogue procedure is to cater for circumstances where it is not appropriate for the contracting authority to be specific about the technical means necessary to satisfy its needs or objectives: [30]

26.  It would be surprising if compliance with the competitive dialogue procedure required the kind of detailed specification asserted by SL. This was particularly so where there could be no certainty about the future demand for freight capacity and freight sailings which any new operator would experience: [32]

27.  There was no requirement for the Scottish Ministers to be more specific in describing the contract requirements. This was because of: (i) the uncertainties and complexity of the contact; (ii) the scope for imaginative and individual proposals; and (iii) the indefinite nature of the content of the most economically advantageous tender.

28.  Competitive dialogue under the Regulations did not deprive the contracting authority of the option of leaving the bidder to assess exactly what should be offered, price it, and then await the evaluation of the contracting authority. If this were not so, contracting authorities would lose the potential of the full benefit of competition between expert bidders, all operating on an equal footing in terms of information and dialogue: [34]

29.  At best, the Claimant therefore had a weak prima facie case: [34]

30.  The balance of convenience, including the public interest and private interests of Serco, favoured lifting the stay: [35]-[39]

Comment

31.  This decision will be welcomed by contracting authorities as affirming the generous margin of flexibility and discretion that is enjoyed under the competitive dialogue procedure. Despite bidders having widely differing interpretations of what the ITT required them to provide, the Court’s view was that the Scottish Ministers were entitled to require parties to make their own projections about future service needs and then decide the winner based on which estimate it regarded as most realistic/advantageous. This was the case notwithstanding the fact that this approach necessarily meant that in one important sense the comparison of bids was not conducted on a ‘like for like’ basis.

32.  It is unlikely that a contracting authority would be permitted to adopt such a relaxed approach to defining contract specifications under the other procedures provided by the Regulations.