On 22 February 2019, the Cabinet Office has issued a Procurement Policy Note (“PPN”) on “Applying Exclusions in Public Procurement, Managing Conflicts of Interest and Whistleblowing” to “deepen understanding” and “supplement and strengthen existing practices”.

An accompanying Information Note explains:-

“When the UK leaves the EU the public procurement regulations will remain broadly unchanged. If the UK leaves the EU with a deal, the existing scheme of UK procurement rules, which implement the EU public procurement directives, will be preserved under the European Union (Withdrawal) Act 2018. If the UK leaves the EU without a deal, the current regulations will be amended to ensure they remain operable and functional on exit.”

The PPN itself addresses Mandatory Exclusion (paragraphs 3-7 inclusive, PCR Regulation 57), Discretionary Exclusion (paragraphs 8-10 inclusive, Regulation 57), Self-declaration of status against the exclusion grounds (paragraphs 11-14 inclusive, Regulation 59), Verification (paragraphs 15-18 inclusive, Regulations 57, 59 and 60), “self-cleaning” (paragraphs 19-21 inclusive, paragraph 57) Conflicts of Interest (paragraphs 22-27 inclusive, Regulations 24, 41, 57 and 84), and “Whistleblowing” (paragraphs 28 and 29).

Paragraph 17 of the PPN emphasizes as follows:-

“In-scope Organisations must request up to date evidence from the winning bidder before award of the contract. If the supplier fails to provide the required evidence within set timeframes, or the evidence demonstrates that a mandatory exclusion ground applies, the award of the contract should not proceed.”

Whether an agreement was complete and enforceable despite there being no express identification of the event which would trigger the payment obligation was one of the issues before the Supreme Court in Wells v Devani (2019) UKSC 4.  This gave rise to questions whether there was a binding contract and as to whether there was an implied term.

The Supreme Court said as regards whether there was a binding contract:-

“17.    The question whether there was a binding contract between Mr Devani and Mr Wells required a consideration of what was communicated between them by their words and their conduct and whether, objectively assessed, that led to the conclusion that they intended to create a legally binding relationship and that they had agreed all the terms that the law requires as essential for that purpose….

18. It may be the case that the words and conduct relied upon are so vague and lacking in specificity that the court is unable to identify the terms on which the parties have reached agreement or to attribute to the parties any contractual intention. But the courts are reluctant to find an agreement is too vague or uncertain to be enforced where it is found that the parties had the intention of being contractually bound and have acted on their agreement. …”

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The prohibition of discrimination based on nationality is enshrined in Article 18 TFEU and Article 21(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’). The broader non-discrimination principle of which it is an expression is among the fundamental values of the EU (Article 2 TFEU), and among the rights protected by the Charter (Article 21). The principle of non-discrimination is a manifestation of the principle of equality of individuals before the law.  The principle requires that comparable situations must not be treated differently and that different situations must not be treated in the same way.  Read more »

Dymoke v Association for Dance Movement (2019) EWHC 94 (QB) was a private law contractual action. Nonetheless, an implied duty of procedural fairness was found to exist, in relation to termination of membership of a company, and in particular that the claimant would be informed of complaints or concerns in sufficient detail to enable her to respond to them, and would be given a reasonable opportunity to respond.  That applied not only to the complaints or concerns, but also to the question of whether they justified the sanction of termination of membership: paragraph 65.

In R (MAS) v SoS for DEFRA (2019) EWHC 158 (Admin), Morris J, at paragraphs 53/54, stated the principles of proportionality as follows:-

(1)      Proportionality is a general principle of EU law;

(2)      Its application in any particular case is always highly fact-sensitive;

(3)      It applies to national measures falling within the scope of EU law;

(4)      It applies only to measures interfering with protected interests;

(5)      Protected interests include the fundamental freedoms governed by the EU Treaties;

(6)      Where the issue is the validity of a national measure, it is for the national Court to reach its own conclusion on proportionality; Read more »

Case T-117/17 Proximus v Council of the European Union, concerns the negotiated procedure for a public services framework contract, what constitutes the most economically advantageous tender (“MEAT”), and the lawfulness of a tender evaluation method, in terms of the general principles of transparency, non-discrimination and equal treatment.  The General Court said:- Read more »

Regulation 18 of the Public Contracts Regulations sets out the EU principles of procurement. These include that contracting authorities “shall treat economic operators equally and without discrimination”. Comparable situations must not be treated differently. Different situations must not be treated in the same way, unless such treatment is objectively justified. The question whether or not there has been a breach of the principle is to be considered in context, and having regard

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In R (MP) v SoS for Health and Social Care (2018) EWHC 3392 (Admin) Lewis J said:-

64. … If a public body chooses to consult upon a particular proposal, then it must do fairly and in accordance with well-established principles. If a public body chooses to consult on one set of proposals, but not to consult on another, different set of proposals, then, unless it can be shown that there is a legal obligation to consult upon the second set of proposals, it is not obliged to do so because it is consulting on the first set of proposals. …

65. The fact that the defendant chose to consult upon a very large number of proposals … does not alter the position. The two issues upon which he chose not to consult … were discrete, self-contained issues. The fact that notice of the decision to make those two changes was contained in the document setting out the response to the consultation exercise does not mean that the proposals were part of, or were linked in some way to the proposals that were consulted upon. The defendant did not fail to carry out the consultation exercise properly. The key question, therefore, is whether there was an obligation to consult upon these two changes. Read more »

In R (Jeffries) v SSHD, (2018) EWHC 3239 (Admin) a Divisional Court held that views given by the then Prime Minister in a private meeting with press misconduct victims, about the desirability of completing the anticipated second part of a Public Inquiry into press misconduct, could not give rise to a legitimate expectation that the second part would go ahead.  The meeting had been off the record by agreement, and the Prime Minister could not have thought, or objectively be expected to have thought, that his words could be relied on as creating a legitimate expectation. Read more »

The Upper Tribunal (Fancourt J presiding) has in judicial review proceedings restated the principles for a claimant establishing or a defendant resiling from a legitimate expectation potentially established by published guidance from a public authority, as follows, in R (Vacation Rentals (UK) Ltd v HMRC), (2018) UKUT 383 (TCC):-

(1) The principle that substantive as well as procedural legitimate expectation should be protected is now well established as a ground for judicial review: Read more »