Contract Procurement

January 14th, 2022 by James Goudie KC

The topics considered, in the context of a public health crisis, by O’Farrell J. in a 519 paragraph Judgment in R (Good Law Project) v SoS for Health and Social Care (2022) EWHC 46 (TCC) include principles in relation to (1) confidentiality and open justice, (2) equal treatment and transparency, and (3) irrationality.

At paragraph 248, the general principles in relation to open justice are stated as follows:-

(1) The principle of open justice demands that the public are entitled to attend Court proceedings to see what is going on – to hold the Judges to account for the decisions they  make and to enable the public to have confidence that they are doing their job properly;

(2) The evidence and argument before the Court should be made public so that the public can understand the issues for determination, the evidence and legal arguments on those issues, the procedural rules applied and the basis on which the Court reaches its decision;

(3) The media should be permitted to report Court proceedings to the public, in furtherance of the principle of open justice and to facilitate exercise of their right to freedom of expression;

(4) The fact that a hearing in open court may be uncomfortable or humiliating to a party or witness is not normally a proper basis for departing from the open justice principle; and

(5) Any departure from the principle of open justice must be justified and will be permitted only where it is necessary in the interests of justice and the administration of justice.

At paragraph 326, the requirements of equal treatment and transparency that are applicable in the context of competitive procurement exercises are summarised as follows:-

(1) A contracting authority must adopt ground rules, setting out the procedure for the procurement, the conditions that must be met by any tenderers and the criteria by which any award will be made;

(2) The rules must be advertised and sufficiently clear so that any interested operator may take the decision to tender for the contract, the tenderers understand the significance and weighting to be applied, and can interpret the rules in the same way;

(3) Contracting authorities are afforded a wide margin of discretion in designing and setting award criteria;

(4) A contracting authority is not permitted to change any of the essential conditions or award criteria during the procurement process without making a formal amendment that is publicised to all potential tenderers; and

(5) When assessing tenders, a contracting authority must apply the award criteria uniformly to similar bids unless there is an objective justification for a difference in approach.

From paragraph 441 legal principles in relation to irrationality are stated as follows:-

(1) In a case concerning decisions that require the making of a complex evaluation of a wide range of overlapping criteria, all of which involve difficult and technical judgements, the Court must accord proper respect to the fact that the decision-maker was much better placed to carry out the assessment than the judiciary by way of judicial review;

(2) The Court will interfere with the decision of a public body only if the decision is outside the range of reasonable decisions open to the decision-maker or there is a demonstrable flaw in the reasoning which led to it;

(3) The decision-maker must take into account all legally relevant considerations and avoid taking into account those that are irrelevant.  That requires reasonable steps to be taken to provide the decision-maker with the relevant information to enable it to make a rational decision;

(4) The scope and content of the Tameside duty is context specific; it is for the decision-maker and not the Court, subject only to Wednesbury review, to decide upon the manner and intensity of the inquiry to be undertaken into any relevant factor;

(5) The decision-maker must be briefed on everything that is relevant, namely, enough to enable an informed judgment to be made; fairness requires that the issues are put to the decision-maker in a balanced way so that a decision may be made on a rational basis;

(6) The question of what is a material or relevant consideration is a question of law, but the weight to be given to it is a matter for the decision-maker, subject only to Wednesbury review;

(7) The Court must not substitute its own decision for that of the decision-maker; there is a high threshold for a challenge based on irrationality. Where a decision is made by a responsible decision-maker after consultation with those who have material knowledge and expertise, it is not to be lightly overridden; and

(8) The margin of appreciation accorded to the decision-maker may be particularly wide in the context of a national emergency, such as the Covid-19 pandemic.

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