The Procurement Bill has reached its Report Stage in the House of Lords. The Government has tabled further amendments. These include : –

• A new duty on the face of the Bill to require contracting authorities to have regard to the participation of SMEs.
• Making it clear that CAs may not generally require audited accounts to test the financial standing of bidders as part of the conditions of participation, or insurance relating to the performance of the contract to be in place before the award of the contract.
• A new statutory duty on the Government to provide a central digital platform, free of charge.
• Raising contract thresholds for publication of information.
• Changing the test for conflicts of interest.
• Implementing Recommendations of the Delegated Powers and Regulatory Reform Committee Report on 14 June 2022.

An employment contract contains an express term conferring a contractual right for the employee to appeal against disciplinary action by the employer including dismissal. If the appeal is successful the dismissal is treated as of no effect. There has been a vanishing dismissal. Both employer and employee are contractually bound to treat the dismissal as having no effect and the employment relationship as having remained in existence throughout. The employee cannot claim that there has been an unfair dismissal and does not have an option whether to return to work or not.

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The extent to which an existing contract can be varied and the same contract continue as varied and when the purported variation or modification will amount to there being a new contract is a question that arises in at least two contexts.  One situation is in relation to the procurement of contracts and the EU driven public procurement regime. That is governed by that statutory regime. The other situation is when the question is governed by the common law of contract. It was the latter with which the Court of Appeal were concerned in Cobalt Data Centre v HMRC (2022) EWCA Civ 1422.

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Individual contracts of employment between local authorities and other bodies as employers and their employees commonly incorporate provisions from collective agreements with Trade Unions. To the extent that happens individual employees can seek rectification of the provisions on usual contractual principles. However, However, the collective agreements as such will not generally provide that they are legally enforceable. Then the Trade Union will not be able to seek rectification. That is because collective agreements are not themselves legally enforceable save where they so provide : Section 179 of TULRCA 1992. The equitable remedy of rectification is available only in respect of legally enforceable agreements : the Court of Appeal in Tyne & Wear Passenger Transport Executive v RMT (2022) EWCA Civ 1408.

Who, for the purposes of a duty to consult before making a decision, is involved in or “affected by” a proposal? This was considered by Kerr J in R ( RDAG ) v Neath Port Talbot CBC (2022) 2674 (Admin). It is primarily an “evaluative factual judgment” to be made by the decision-maker: para 107. It is not for the Court to interfere with that judgment unless the authority misdirects itself or otherwise errs on established public law principles. The authority must, however, direct itself in accordance with the true meaning of “affected” when that concept is relevant. In those circumstances the meaning is for the Court tom determine, objectively.

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In Case T-717/20, LENOVO v EuroHPC, Judgment on 19 October 2022, the EU General Court says that:-

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In R (Timson) v SoS for Work & Pensions (2022) EWHC 2392 (Admin) Cavanagh J considered the case-law authorities on the circumstances in which written guidance to decision makers may render unlawful the exercise of statutory discretion, the test for judicial review of a policy at common law, the Padfield and Tameside obligations, and, from para 150,  the fairness obligation. He reiterated that the rule is that, BEFORE a statutory purpose is exercised, ANY person who FORESEEABLY would be SIGNIFICANTLY DETERIMENTALLY AFFECTED should be given the OPPORTUNITY TO MAKE REPRESENTATIONS IN ADVANCE unless (1) the statutory provisions concerned expressly or impliedly provide otherwise or (2) the circumstances in which the power is to be exercised would render it 9i) impossible, (ii) impractical or (iii) pointless, any argument in support of which should be VERY CLOSELY EXAMINED. A Court will be SLOW TO OLD that there is no obligation to give the opportunity, when such an obligation is not dispensed with in the relevant statute. Cavanagh J considered common law claims and ECHR rights. As to the latter, he considered whether the claimant was a “victim” for the purposes of Section 7 of the Human Rights Act 1998, and whether there was a breach of the claimant’s rights under Article 1 of the First Protocol, in the context of social security benefits. In a control of use case, just as in a deprivation or expropriation case, a FAIR BALANCE must be struck between the demands of the general interests of the community and the REQUIREMENT of the protection of the individual’s FUNDAMENTAL RIGHTS. The rules of domestic law must be sufficiently ACCESSIBLE,  PRECISE and FORESEEABLE. The fact that the case is concerned with a control of use rather than deprivation of property may be relevant, for example, if may have an impact upon the FAIR BALANCE ISSUE. The fair balance test is addressed at paras 258-261 inclusive. Cavanagh J also considered the question sof “other status”  and comparator for the purposes of Article 14 of the ECHR.

In Braceurself Ltd v NHS England (2022) EWHC 2348 (Admin) there was a two-horse contract race. The outcome of the procurement competition was very close. Even minor breaches of the procurement regime by the contracting authority could have had a decisive impact on the outcome. There was an actual loss of the contract, not the mere loss of the chance of winning a contract.  There was a breach. The Claimant sought damages. It failed, notwithstanding the “powerful impact” of the breach on the outcome. The breach was held not to be “sufficiently serious” to justify an award of FRANCOVICH/BRASSERIE DU PECHEUR damages. Whether that was the case, in accordance with the House of Lords decision in FACTORTAME, the UK Supreme Court decision in ENERGY SOLUTIONS v NUCLEAR DECOMMISSIONING AUTHORITY and the decision of the Court of Appeal in DELANEY v SoS for TRANSPORT, was the issue. That depended on all the many relevant factors and the individual facts of the case, as recognized by the Court of Appeal in Ocean Outdoor v Hammersmith & Fulham LBC. The impact of the breach on the availability of public services is amongst the relevant considerations. The Judge said, at para 90, that the phrase “sufficiently serious” indicates that a “fairly high threshold” must be passed before it can be said that, in all the circumstances, the test had been satisfied. This was because (1) it was a single breach case, (2) the breach was at the excusable end of the spectrum and minor, (3)the was inadvertent and occurred in good faith, (4) the Defendant’s purpose was a laudable one, (5)  overall the procurement was carefully planned and well-organised, (6) the adverse impact from the breach was limited, and (7) the case was far removed from the multiple breach case in ENERGY SOLUTIONS.

The Coughlan principles apply within the ambit of a consultation being undertaken. They cannot be used to contend that the scope of the consultation should have been wider. So stated by Holgate J at para 196 in R (BT Pension Scheme Trustees Ltd) v UK Statistics Authority (2022) EWHC 2265 (Admin).

Exclusion of Committee members from voting was one of the issues in R ( Spitalfields Historic Building Trust ) v Tower Hamlets LBC ( 2022 ) EWHC 2262 ( Admin ). The Judge’s analysis in relation to this begins at para 111. The starting point is that every member of a local authority council or committee has a prima facie entitlement to vote at a relevant meeting. Any restriction of the entitlement requires statutory authority. Where consideration of a planning application is deferred, the two meetings form part of a single decision-making process. A local authority is entitled, by provision in its Constitution, to say that, as far as possible, members should be present for all of that process in order to vote. Such a provision constitutes the regulation of “ proceedings and business “ of the committee, within the power in para 42 of Sch 12 to the Local Government Act 1972.