In Biffa Waste Services v Leicestershire County Council (2021) EWHC 1764 ( TCC ) Joanna Smith J addresses the scope of the Principle of Transparency in regulated public contract procurements, and also the requirement to establish causation of loss or damage. At para 44 the Judge declined to make new law seeking to impose an enforceable legal obligation on contracting authorities to inform bidders each time one or other anonymised rival bidder withdraws or is readmitted to a procurement process.
Regulation 32 (2) (c) of the Public Contracts Regulations 2015 allows negotiation of a contract without prior advertisement insofar as it is “strictly necessary”. This is provided that is so by reasons of “extreme urgency”. Moreover, the extreme urgency must be brought about by events “unforeseeable” by the contracting authority and it must not be possible for the time limits for other procedures to be complied with. In R ( Good Law Project) v Minister for the Cabinet Office (2021) EWHC 1569 (TCC) O’Farrell J observed, at para 82, that use of the Regulation 32(2)(c) procedure is a departure from the “normal requirement” that public contracts ( above the relevant thresholds) “ must” be subject to an “open, transparent and competitive process.” As such, it should be reserved for “exceptional circumstances”. At para 89 she observed that the burden of proving the requisite circumstances is on the contracting authority and that the derogation must be “interpreted strictly”; at para 90 that in each case it is a question of fact, objectively ascertained, as to whether the necessary circumstances existed at the time the decision was made.; at para 91 that in considering whether there was sufficient time to carry out an expedited procurement exercise the Court may take into account evidence as to the minimum time needed in practice, for preparing tender documentation, evaluating tenders, etc; and at para 93 that even if the derogation is engaged the “scope and duration” of the procurement “must be limited” to what is strictly necessary.
At para 124 the Judge held that the extreme urgency, for immediately needed public health protection services, caused by the Covid-19 pandemic was unforeseeable, unpredictable, and not attributable to the Defendant.
The Cabinet Office has issued a National Procurement Policy Statement with immediate effect. This amongst other matters requires contracting authorities to have regard to national strategic priorities for public procurement when exercising their functions relating to procurement. These are (1) creating new businesses, new jobs and new skills, (2) tackling climate change and reducing waste, including contributing to the target to reduce greenhouse gas emissions to net zero by 2050 and delivering environmental benefits,
and (3) improving supplier diversity, innovation and resilience. Authorities should take a “broad view” of value for money that includes the improvement of social welfare or wellbeing, balanced with delivery of the core purpose of the contract.
The Planning Committee of a local authority resolves to grant planning permission for a mixed use development. It does so subject to the developer entering into: “an appropriate legal agreement.” Council officers entered into a s 106 agreement which made affordable housing provision. They did not return to the Committee. Did they act beyond their delegated authority? No, says the Court of Appeal in R (Flynn) v Southwark LBC (2021) EWCA Civ 827, at paras 39-63 inc & 95-97.
In Tyne & Wear Passenger Transport Executive v National Union of Rail etc Workers (2021):EWHC 1388 (Ch) it is held that a collective agreement can be rectified. Rectification is not confined to legally binding contracts: para 58 and following. The jurisdiction to rectify is quite general. It may be exercised in respect of a “wide range of contracts and documents inter partes.”
In R (Trinity College) v SoS for MHCLG (2021) EWHC 1355 (Admin) the commercial arm of Trinity College Cambridge applied unsuccessfully for judicial review of the refusal by the SoS to grant it funding under the European Regional Development Fund for the creation of a research hub at the Cambridge Science Park. In relation to the main project building contract, the claimant, albeit not a contracting authority, was in breach of the procurement rules applicable to ERDF projects. The SoS was bound to reject the application because the amount of the grant would have to be reduced and then the project would not be a viable candidate for ERDF support.
Last week as already noted in this Bulletin a Divisional Court held that a meeting under the Local Government Act 1972 must take place at a single, specified geographical location, that attending a meeting involves physically going to it, and that being present at such a meeting involves physical presence at the location. This week the Court gives a further Judgment, (2021) EWHC 1145 (Admin), in the same case, on public access to meetings which are required to be held in public or open to the public. The Court holds, at para 6, that members of the public must be admitted in person to the place where the meeting is being held, and, at para 8, that the mode by which the public is to have access is by physical attendance at the meeting.
In Hertfordshire County Council v SoS (2021) EWHC 1093 (;Admin ) a Divisional Court holds, at para 89, that primary legislation would be required to allow local authority meetings under the Local Government Act 1972 to take place “remotely”. Such meetings must take place in a (1) single, (2) specified (3) geographical location. Attending a meeting at such a location means “physically going to it”. Being “present” at such a meeting involves “physical presence” at “that” location.
The decision whether to allow some or all local authority meetings to be conducted remotely, and, if so, how, is a matter for Parliament, not the Courts: para 90.
Note the draft General Power of Competence (Commercial Purpose) (Conditions) (Wales) Regulations 2021, pursuant to Sections 24 and 27/28 Of the Local Government and Elections (Wales) Act 2021, requiring amongst other things authorities to prepare and approve a Business Case before using the General Power to do things for a commercial purpose/trading, together with regulatory Impact Assessment, and Welsh Government Consultation Document, for response by 11 June 2021. The General Power comes into force for principal councils on 1 November 2011 and for eligible community councils on 5 May 2022.
See Bechtel Ltd v High Speed (HS 2) Ltd (2021) EWHC 448 (TCC) on judicial oversight of procurement and challenges to the outcome of procurement challenges: paras 18-28; confidentiality in litigation concerned with procurement challenges: paras 31-39; evidence from claimant witnesses: paras 135-139; manifest error: paras 256/257; transparency, keeping records, equality of treatment, giving of reasons, proportionality: paras 79, 274-277, 281-333; limitation: paras 339/340; abnormally low tender: paras 456-468; modifications: paras 482-492; and abandonment: paras 506-508.