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 »

Recent statutory instruments include the Combined Authorities (Finance) Order 2017, SI 2017/611, coming into force on 27 April 2017, which makes provision for various matters connected with precepting for Mayoral functions in Mayoral Combined Authorities, which are major precepting authorities for the purpose of setting council tax under the Local Government Finance Act 1992; the Transport Levying Bodies (Amendment) Regulations 2017, SI 2017/603, coming into force on 16 May 2017, amending the Transport Levying Bodies Regulations 1992 in consequence of the establishment of the Tees Valley and the West Midlands Combined Authorities, to enable the issuing of a levy by the respective Combined Authorities in order to meet the costs of carrying out their transport functions; the Greater Manchester Combined Authority (Functions and Amendment) Order 2017 (Transfer of Police and Crime Commissioner Functions to the Mayor) Order, and (Fire and Rescue Functions) Order; and Orders relating to the Liverpool City Region, Sheffield City Region, Cambridge and Peterborough, Tees Valley, West Midlands, and West of England Combined Authorities. Combined Authorities are also able to create Mayoral Development Corporations, which have similar powers to New Town Development Corporations, for the purposes of the recently enacted Neighbourhood Planning Act 2017.

It is not a failure to mitigate damages not to take advantage of the opportunity to stop the award of a contract in breach of procurement law. However, damages are recoverable only if the breach is “sufficiently serious”. These were the main holdings of the Supreme Court in NDA v ATK [2017] UKSC 34.

ATK brought a public procurement claim against NDA in connection with ATK’s unsuccessful bid for a contract. NDA failed wrongly to award the contract to the consortium to which ATK belonged, in breach of its obligations under the Public Procurement Regulations 2006 (“the 2006 Regulations”), which give effect in the UK to the Public Procurement Directive No 2004/18/EC (“the PP Directive”). Read more »

The Local Authorities (Standing Orders) (Wales) (Amendment) Regulations 2017, S.I. 2017/460 (W.98) amend the Local Authorities (Standing Orders) (Wales) Regulations 2006 (S.I. 2006/1275) (W. 121) to make provision about membership and the quorum for meetings of relevant authorities. “Relevant authorities” for the purpose of new Regulation 4A (1) of the 2006 Regulations, inserted by Regulation 3(3) include, in addition to county and county borough councils, joint planning boards and National Park authorities.

The Amendment Regulations apply to committees and sub-committees of relevant authorities by which a relevant function is discharged. A “relevant function” is a function exercisable in relation to an application under the Town and Country Planning Act 1990.

Regulation 2(3) of the 2017 Regulations inserts new Regulation 4A and new Schedule 2A in the 2006 Regulations, to require a relevant authority to include in their Standing Orders a requirement that the quorum for their meetings must include at least half of the committee’s members.

Standing orders must also restrict the appointment of substitute members to committees.

In R (Wylde) v Waverley Borough Council (2017) EWHC 466 (Admin) Dove J held that the claimants, who were not “economic operators” with an interest in securing the contract which was the subject of their claim, but who were a group of local councillors and residents who opposed a large scale development in Farnham Town Centre, lacked standing for a judicial review claim that the development contract had been varied, in order to decrease the sum payable by the developer to the Council for the land in question, contrary to the contracting authority’s procurement law duties.  Dove J applied the Court of Appeal decision in R (Chandler) v SoS for Children, Schools and Families (2010) LGR 1 and concluded that R (Gottlieb) v Winchester City Council (2015) EWHC 231 (Admin), the Winchester Silver Hill case, had been wrongly decided on the standing issue.  The claimants were unable to demonstrate any direct impact upon them from the variation not being regarded by the Council as a new contract and the Council’s decision that no competitive tendering exercise was required.  Any competition would be with respect to the same development that the claimants opposed.

The Council succeeded in Milton Keynes Borough Council v Viridor (2017) EWHC 239 (TCC) in obtaining rectification of a waste-recycling contract on the basis that payment terms offered in a tender had been unequivocally accepted but later the wrong tender document had been incorporated into the contract by common or unilateral mistake.

The Combined Authorities (Mayoral Elections) Order 2017, SI 2017/67, provides for the conduct of a Combined Authority Mayoral Election. The Order is modelled on the Local Authorities (Mayoral Elections) (England and Wales) Regulations 2007. An election is to be conducted in accordance with the Rules set out in Schedule 1 to the Order.

The Combined Authorities (Mayors) (Filling of Vacancies) Order 2017, SI 2017/69, provides (Article 3) for the filling of vacancies in the Office of Elected Mayor of a Combined Authority, (Article 4) for the date on which the vacancy occurs, (Article 5) for giving public notice of a vacancy, (Article 6) for by-elections, and (Article 7) for the term of office of the person filling the vacancy.