In Sysmex (UK) Ltd v Imperial College Healthcare NHS Trust (2017) EWHC 1824 (TCC) Coulson J reiterated the principles of law applicable to lifting the automatic suspension of a contracting authority’s ability to enter into a contract covered by the public procurement regime, as follows:- Read more »

In Case T-392/15, European Dynamics v European Union Agency for Railways, the applicants alleged that the Agency had failed to fulfil its obligations to state reasons for its decision.  The applicants’ case was that the rejection decision, and the Report of the Evaluation Committee leading to that decision, were vitiated by a failure to give reasons why the applicants’ tenders were abnormally low tenders (“ALTs”). The General Court dealt with the linked issues of the scope of the duty of a contracting authority to state reasons and the scope of the rules governing ALTs. Read more »

The Unfair Contract Terms Act 1977 applies not only in favour of consumers but also “between contracting parties when one of them deals … on the other’s written standard terms of business”: Section 3. What is meant by “deals … on the other’s written standard terms of business”?  That was the main issue in African Export-Import Bank v Shebah Exploration & Production Company Limited (2017) EWCA Civ 845.  Longmore LJ gave guidance as to the correct approach.  He observed that before the Act can be held to apply and require an inquiry into the reasonableness of any particular term, the party relying on the Act must establish (the onus of proof being on that party) that:- Read more »

In yet another Alstom Transport UK Limited v London Underground Ltd (2017) EWHC 1521 (TCC) the Defendants applied to lift an automatic suspension on contract making imposed by the Utilities Contracts Regulations 2006.

The present dispute arose out of a procurement for the provision of AC traction motors for the Defendants’ fleet of Central Line trains. The outcome of the procurement was that the Defendants decided that Bombardier should be the winning bidder, with Alstom coming second. By these proceedings Alstom challenged the validity of the procurement and its outcome. It opposed the lifting of the automatic suspension. Read more »

In Alstom Transport UK Limited v London Underground Limited and Transport for London (2017) EWHC 1406 (TCC) the principal issue was whether the Court should hear an application for specific disclosure before the application to lift the suspension. Coulson J concluded that it was appropriate for the application for specific disclosure to be heard in advance of the application to lift the suspension. Read more »

The Supreme Court has reaffirmed that whereas saving cost is “of course” a legitimate objective of public policy, budgetary considerations “cannot” justify discrimination. In other words, if a benefit is to be limited in order to save costs, it “must” be limited in a way that is neither directly nor indirectly discriminatory and is a proportionate means of fulfilling the legitimate objective: R (Coll) v SoS for Justice (2017) UKSC 40, at paragraphs 40 and 42, per Lady Hale, Deputy President. Read more »

Sutton Housing Partnership Limited (“SHP”) manage the housing stock of Sutton Council.   In SHP v Rydon Maintenance Limited (2017) EWCA Civ 359 SHP sued as employer under a construction contract.  The Defendant is a contractor which specialises in the repair and maintenance of housing.  SHP engaged Rydon to carry out maintenance and repairs to the housing stock which the Council owns.  The contract was based on the National Housing Federation’s standard form contract, 2011.  The contract conditions were expressed by reference to “Key Performance Indicators” (“KPIs”) and “Minimum Acceptable Performances” (“MAPs”), as measured by a KPI, as set out in the KPI Framework.  The KPI Framework was a contractual document.

The issue in the case was whether the MAP levels were contractual, expressly or impliedly. The Court of Appeal has held that the MAPs were contractual.  Both parties must have intended the contract to specify MAPs, applying the approach to commercial contracts mandated by the Supreme Court in Rainy Sky v Kookmin Bank (2011) 1 WLR 2900, (2011) UKSC 50 and Arnold v Britton (2015) UKSC 36, (2015) AC 1619.  That was the only rational interpretation of the “curious contractual provisions”.  The Council’s manager retained a valuable power to terminate for poor service.

In R (Pharmaceutical Services Negotiating Committee) v SoS for Health (2017) EWHC 1147 (Admin) Collins J was concerned with challenges to the legality of the process by which remuneration of pharmacies which dispense medicines and provide other services within the NHS was to be reduced as part of the financial savings required.  There was a consultation.  It was not sought to challenge the amount of the new proposed reduction.  It was recognized that that is financial policy driven by the need to save public funds over the whole governmental estate.  What was asserted was that the means by which the reductions had been imposed had for various reasons been unfair and in breach of statutory requirements. Read more »

In Case C-131/16, Archus v PGNG, the CJEU on 11 May 2017 restated with reference to previous authority the principles of equal treatment of tenderers, as follows (numbering added):-

1. The requirement for the contracting authority to observe the principle of equal treatment of tenderers which has the aim of promoting the development of healthy and effective competition between undertakings taking part in a public procurement procedure means, inter alia, that tenderers must be in a position of equality both when they formulate their tenders and when those tenders are being assessed by the contracting authority; Read more »

“Purdah” is not a rule of law. It does not override obligations to comply with statutory duties.  So held Garnham J in R (ClientEarth) v SoS for Environment, etc, a case concerned with the 8 June 2017 General Election announced on 18 April 2017.  On 20 April 2017 the Cabinet Office published Guidance in respect of that Election which came into force at midnight on 21 April 2017.  This Guidance followed Cabinet Office Guidance published on 12 April 2017 in respect of the local government elections which were to take place on 4 May 2017.  That Guidance indicated a “period of sensitivity”, or “purdah”, covering a three week period from 13 April 2017 preceding those elections. Read more »