Public Sector Equality Duty (“PSED”)

October 24th, 2012 by James Goudie KC in Human Rights and Public Sector Equality Duty

In R (RB) V Devon County Council, Judgment 19 October 2012, it was held that a change of provider of an Integrated Children’s Service (“ICS”) engaged the PSED at various stages of the procurement process, including the decision to retain the ICS under a single provider and the award of preferred bidder status, but not the possibility of future (post contract) changes in the provision of the ICS, until the detail of such changes was sufficiently well established. However, anything other than declaratory relief was refused, on account of urgency, the fact that the PSED had been addressed at the intention to award contract stage, lack of detriment to the claimant family, and quashing being detrimental to the children of Devon generally.

 

Performance Indicators (WALES)

October 24th, 2012 by James Goudie KC in Best Value

The Local Government (Performance Indicators) (Wales) Order 2012, SI 2012/2539 (W.278) specifies performance indicators for the purpose of s8 in Part 1 of the Local Government Wales Measure 2009, by reference to which Welsh county and county boroughs’ performances will fall to be measured from 1 April 2013. Such “improvement authorities” must make arrangements to exercise their functions so that any applicable performance standard is met. The Order identifies by reference to Schedules which indicators will be used to measure the performance of which functions: Social Services, Housing, Education, Waste Management, Transport and Culture and Sport.

 

Consent For Disposal Of Land

October 22nd, 2012 by James Goudie KC in Local Authority Powers

Clause 6 of the Growth and Infrastructure Bill removes an anomaly whereby currently general consents for the disposal of land by local authorities can be given under LGA 1972 for less than best consideration but cannot be given under TCPA 1990 where land is held for planning. Clause 6 amends s233 of TCPA 1990 (disposal by local authorities of land held for planning purposes) by providing for the SoS to grant general consent for disposals as well as specific consent upon receipt of an application from a local authority. Subsection (2) enables the SoS to give consent generally for the disposal of land at less than the best consideration reasonably obtainable. Such consent may be granted by reference to any particular disposal or disposals, or in relation to a particular class of disposals; local authorities generally, or local authorities of a particular class, or to any particular local authority or authorities, and either unconditionally or subject to conditions (either generally or in relation to any particular disposal or disposals or class of disposals). Subsection (3) applies the protection for purchasers in respect of certain land transactions contained in s128(2) of LGA 1972 to all purchasers of land disposed of by local authorities under s233 of TCPA 1990. At present, s128(2) applies to some purchases under s233 but not to all purchases under s233. Such transactions will not be void where a local authority has failed to obtain the relevant consent and a prospective purchaser will not have to enquire whether the disposing local authority has obtained the necessary consent.

 

Towns and Village Greens

October 22nd, 2012 by James Goudie KC in Land, Goods and Services

Clause 12 of the Growth and Infrastructure Bill amends the Commons Act 2006 (“CA 2006”) so as to allow landowners to deposit a map and statement to protect their land from registration as a town or village green, whilst allowing access to it. ·Clause 13 excludes the right to apply to register land as a town or village green under s15(1) of CA 2006 where any specified event related to the past, present or future development of land occurs. Such events are known as ‘trigger events’ and these are specified in the table set out in Sch 1A to CA 2006, which is inserted by this clause. An example of such an event is the point when an application for planning permission is first published. Sch 1A also specifies terminating events which correspond to each trigger event and cause the exclusion of the right to apply under s15(1) to lift. Clause 14 amends an existing power to allow regulations to prescribe more flexible fees in relation to applications under Part 1 of CA 2006, including applications to register land as a town or village green.

The Explanatory Notes to the Bill state in relation to these Clauses:

“154. The rationale for reform is that currently applications for registering land as a town or village green under section 15(1) of the Commons Act 2006 are considered in isolation from the planning process. This in some cases leads to development which has planning permission being delayed or prevented. One of the recommendations of the Penfold review of non-planning consents was to review the operation of the regime for registering town or village greens in order to reduce the impact of current arrangements on developments which have planning permission. Implementation of this recommendation is achieved through clause 13, which aims to stop the registration system for town or village greens being used to stop or delay planned development. The reforms will protect local communities’ ability to promote development in their areas through local and neighbourhood plan-making. The proposals also aim to reduce the financial burden on authorities in determining applications and the costs to landowners whose land is affected by applications.”

The Explanatory Notes further state (para 156) that “it is highly debatable whether the right to use land registered as a town or village green for lawful sports and pastimes is a civil right since it is a form of local public right rather than a property right”, but in any event that “since the proposed measures do not determine the existence of any recreational rights, it is considered that Article 6 is not engaged; (para 160) that “it is considered that a right to use land registered as a town or village green for lawful sports and pastimes is not a possession for the purposes of Article 1 Protocol 1 (“A1P1”) and therefore this Article is not engaged; and (para 161) that, if the right to use a town or village green for lawful sports and pastimes were a possession, the Government considers that A1P1 would be “unlikely to be engaged”, since the right to apply for land to be registered as a town or village green “is not an existing possession”, but is “merely the right to apply for a future possession”, and that it is also considered that, in removing the right to apply for town or village green registration in certain circumstances, there is no interference with any claim since the legislation will affect future rather than existing applications

 

Remedies in Judicial Review

October 17th, 2012 by James Goudie KC in Judicial Control, Liability and Litigation

In Walton v The Scottish Ministers [2012] UKSC 44, concerned with the construction of an Aberdeen bypass, Lord Carnwath observed, at para 103, that the issue of discretion may in practice be “closely linked” with that of standing, and may be “important in maintaining the overall balance of public interest” in appropriate cases. Lord Carnwath said:

” … I see discretion to some extent as a necessary counterbalance to the widening of rules of standing. The courts may properly accept as “aggrieved”, or as having a “sufficient interest” those who, though not themselves directly affected, are legitimately concerned about damage to wider public interests, such as the protection of the environment. However, if it does so, it is important that those interests should be seen not in isolation, but rather in the context of the many other interests, public and private, which are in play in relation to a major scheme …”

At paragraph 112 Lord Carnwath said:

“The applicant will be refused a remedy, where he complains only of a procedural failure (whether under statutory rules or common law principles), if that failure has caused him personally no substantial prejudice. Where, however, a substantive defect is established, going either to the scope of the statutory powers under which the project was promoted, or to its legality or rationality … the court’s discretion to refuse a remedy will be much more limited. These general principles must of course be read in the context of the statutory framework applicable in a particular case.”

 

Housing

August 28th, 2012 by Christopher Knight in Housing

Possession Proceedings

The lower courts continue to clarify the position following the decisions of the Supreme Court in Manchester City Council v Pinnock [2010] UKSC 45; [2011] 2 AC 104 and Hounslow London Borough Council v Powell [2011] UKSC 8; [2011] 2 AC 18 on the application of Article 8 ECHR to defend possession proceedings. In JL v Secretary of State for Defence [2012] EWHC 2216 (Admin) Ingrid Simler QC, sitting as a Deputy, dismissed a claim made by a disabled woman living in MoD accommodation through her husband having been a former Army officer. Not only was the Claimant disabled, but her daughter and grandson with whom she lived were also disabled. In 2009, pre Pinnock, a possession order had been made on the basis that consideration of proportionality was not required. The MoD decided to enforce the possession order some two years later, the Claimant having unable to identify suitable alternative accommodation. The Court upheld the proportionality of the MoD’s decision to enforce the order – which was the only decision under challenge in the judicial review – because the proportionality of the eviction could be assessed at the enforcement hearing, the MoD had limited resources to provide accommodation for a number of people, and temporary alternative accommodation was being offered. There was no breach of Article 8 ECHR.

Children

Section 17 of the Children Act 1989 places local authorities under a general duty to safeguard and promote the welfare of children within the area who are in need and, so far as is consistent with that duty, to promote the upbringing of such children by their families. The House of Lords held in R (G) Barnet LBC [2003] UKHL 54; [2004] AC 208 that s.17 was a target duty only. In R (Bates) v Barking & Dagenham LBC, unreported, QBD, 17 August 2012 Timothy Straker QC, sitting as a Deputy, discharged an injunction granted on the papers requiring the local authority to accommodate the Claimant with her children, the local authority having accepted the need to accommodate the children but because of the Claimant’s actions declined to accommodate them together. Mr Straker QC held that because s.17 was only a target duty there was no enforceable duty, and the local authority was entitled to try and prompt the Claimant into better organising her life and asking for help.

Immigration

The Secretary of State has a power to provide facilities for the accommodation of a person released on bail under any provision of the Immigration Acts by virtue of s.4 of the Immigration and Asylum Act 1999, except that this power may not be exercised in the case of a citizen of a state in the European Economic Area: Nationality, Immigration and Asylum Act 2002, Sch.3, para.5. The Claimant in R (Gally) v Secretary of State for the Home Department, unreported, QBD, 9 August 2012 claimed to be French, but the French Government confirmed that he was not in fact a French national. As a result, the Court found that the Secretary of State was not entitled to conclude that he was French and therefore refuse support simply because of his own assertion. The Secretary of State had to make her own decision, and therefore retake the decision on the provision of support.

Homelessness

The Welsh Government published the new ‘Code of Guidance for Local Authorities: Allocation of Accommodation and Homelessness 2012’ with effect from 13 August 2012.

Legislation

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 created a new offence of squatting in a residential building, which will come into force on 1 September 2012. The Ministry of Justice has published consequential guidance: ‘Offence of Squatting in a Residential Building, Circular 2012/04’.

 

Executive Power

August 21st, 2012 by James Goudie KC in Decision making and Contracts

In R (Buck) v Doncaster MBC [2012] EWHC 2293(Admin) Hickinbottom J considered the respective powers of an Elected Mayor and his Executive Cabinet on the one hand and the Full Council on the other hand and the division and demarcation between them.  He held that the Executive had acted lawfully in declining to implement a purported direction by a two thirds majority of Full Council relating to the provision of library services.  This was an executive function.  It made no difference that the direction was by way of an amendment by Full Council to the authority’s annual budget as proposed by the Mayor.  The Mayor’s decision not to spend the allocated funds in accordance with the terms of the amendment was not “contrary to or not wholly in accordance with, the budget”. 

The starting point of course is that under the Local Government Act 2000 the default position is that a function being an executive function is the default position.  That is the case save where specific provision provides that they are non-executive.  This generally resolves itself in England into a matter of interpretation of the Local Authorities (Functions and Responsibilities) (England) Regulations 2000, SI 2000/2853, as frequently amended.  The vast majority of an authority with executive arrangements business is executive business. 

There are, however, a range of non-executive functions.  These include approving the authority’s budget and adopting various plans and strategies. 

Nonetheless, the role of the Full Council in the budget process is limited to the allocation of resources to meet the authority’s potential expenditure for a future period (usually the next financial year), which enables it to set an appropriate level of council tax.  This means that executive functions cannot be exercised in a way which means the budget would be exceeded.  It does not mean that the obligation to estimate revenue expenditure that will be incurred by the authority in the following year entails a power for Full Council to prescribe that certain expenditure must be spent by the executive in certain ways.  The legislative regime as to how executive and non-executive functions should be divided cannot be upset by provisions relating to the calculation of council tax.  The budgetary process is geared to ensuring that there is no budget deficit.  It does not allow Full Council to micro-manage the authority’s functions and interfere with executive functions, only to allocate more or less funds to the Mayor. 

As Hickinbottom J put it at para 64:- 

“It is open to the full Council to amend the budget, wholly or in some of its constituent parts, downwards, thereby depriving the Mayor of the available funds to do what it might otherwise wish to do in the way in which it might wish to do it. If the budget is cut, that will not of course force the Mayor to perform an executive function only in the way the full Council may wish; he may decide to perform it in a different way, with the reduced funds allocated to him. Similarly, the full Council might amend the budget upwards, making additional funds available to the Mayor to spend in exercising his functions; but, equally, that does not force the Mayor to perform the executive function only in the way the full Council may wish.” 

            At para 75 Hickinbottom J concluded:- 

            “If, as I have found, the true construction of the regulatory scheme is that the decision as to how to provide library services is an executive decision for the Mayor, and not a decision for the full Council, it cannot have been improper for the Mayor to come to his own decision, as charged by the statute, rather than complying with the direction of the full Council, who had no proper part to play in that specific decision at all. Indeed, as Mr Giffin submitted, for the Mayor and the Cabinet to have merely followed the direction of the full Council, treating it as binding on them (as the Claimant contends it was) would itself have been unlawful, as it would have improperly fettered the decision-making discretion of the executive in relation to those facilities.”

 

Public Procurement

August 17th, 2012 by Site Default in Social Care

R (A) v Chief Constable of B Constabulary [2012] EWHC 2141 (Admin)

Introduction

1.     This case addresses the circumstances in which the Courts will impose a public law duty of procedural fairness etc. when public bodies are carrying out procurement activities. This is particularly significant in cases where the Public Contract Regulations 2006 do not apply e.g. where there is no significant cross-border interest in the relevant contract, and the only available remedy is judicial review. Synthetic opiate ones such as oxycodone, can also lower the cialis for bph dose effectiveness of vitamin. Dilly and we are so happy to be doing and best ed where you are going. Concern is that viagra canada it is combining sildenafil with online to use and 86 of patients. The judgment supports the view that the fact that a public body is exercising statutory powers in conducting a procurement/entering into a contract should be treated as sufficient to activate the Court’s supervisory judicial review jurisdiction.

Case summary

2.     The Claimant (“C”) was a sole trader who provided vehicle hire, breakdown and recovery services etc. C had provided these services to the Defendant for many years, originally on his own account and latterly as a sub-contractor. 

3.     In 2010, the Defendant entered a new contract with FMG Ltd. FMG engaged C as a sub-contractor.  

4.     While C’s contract was thus with FMG, rather than the Defendant, it contained terms governing C’s relationship with the Defendant. The terms included a requirement that C’s employees must be security cleared. If an employee failed the vetting there was no contractual requirement on the Defendant to provide (even cursory) reasons, or give C an opportunity to make representations. 

5.     C failed the security vetting and consequently could not perform the contract. The Defendant would not disclose the reason for the failure. C made a subject access request under the DPA 1998, but this provided no new information. 

6.     C sought judicial review, contending that the Defendant was exercising public powers in vetting him for security clearance and hence owed him a public law duty to act fairly. He argued that there was no good reason why the police should not give some indication of the basis of their concerns, allow him an opportunity to respond and then, if the refusal was maintained, give him some explanation.  

7.     C relied on the fact that under the general police policy, “best practice” required as a minimum that the reason for refusal of security clearance should be given, even to non-police personnel, unless there were legitimate grounds for not doing so. 

8.     The Defendant argued that the matter was not justiciable. While the Defendant was a public body it was not exercising statutory powers in deciding whether to grant security clearance to C. The context was a contractual one, the decision being the exercise of a power under the  sub-contract between C and FMG. 

9.     It was submitted that the security vetting of C did not involve a public function because the vetting was not performed for the good of the public at large but rather was an operational or management function intended to secure the efficient operation of a contractual obligation. In the contractual and commercial context in which the matter arose, the Defendant did not owe any public law duty to C. 

10.  In the alternative, even if there was a duty of fairness, the Defendant was not obliged to disclose the basis upon which it was minded to refuse security clearance, or to explain, even briefly, the reason for the refusal. Security vetting inevitably involved sensitive matters. In this case, the decision was based upon police intelligence, which came from three police forces and over 20 different sources. Where decisions were based on sensitive intelligence information the duty of fairness required no more than that the decision maker acted honestly and without bias or caprice. 

Judgment 

Statutory underpinning and non-justiciability 

11.  Kenneth Parker J emphatically rejected the non-justiciability argument. The tender process and sub-contract with A had  “a strong and necessary statutory underpinning” because it facilitated the Defendant’s exercise of its statutory powers in relation to the seizure, recovery and retention of vehicles. 

Public function (identifying the ‘additional/sufficient public law element’) 

12.  Security vetting was a public function, carried out in the public interest, to ensure that those non-police personnel working with the police were fit and proper persons to do so. This was confirmed by the existence of centrally determined police policies on the issue. If the Defendant failed to conduct such vetting, it would be guilty of a public law wrong that would sound in judicial review. 

13.  Thus, there was a sufficient “public law element” to found a claim for judicial review. 

General principles for determining when contract award decisions are subject to JR 

14.  Interestingly, Kenneth Parker J specifically referred to and endorsed the analysis of the application of judicial review to public bodies’ contracting activities advanced by Professor Stephen Bailey ([2007] PL 444–463). As is well known, Professor Bailey argues that judicial review should generally be available in respect of any exercise of statutory powers by statutory bodies, even where such exercises take the form of entering private law arrangements such as contracts.  

15.  He contends that the requirement for an additional “public law element” should only be necessary were the question arises whether a non-statutory body is, or is not, subject to judicial review. This is the analysis that was endorsed by Elias J (as he then was) in R (Molinaro) v Kensington RLBC [2002] LGR 336 at §65. 

16.  Kenneth Parker J noted that if the Defendant’s submission was correct in respect of justiciability,  it could refuse security clearance for a wholly improper reason, unrelated to the need to promote the public interest. Public bodies were subject to the supervisory jurisdiction of the Court and were not, as a matter of principle, free to act ‘as unfairly’ as private entities. 

Contract cannot narrow the scope of the public law duty of fairness 

17.  Interestingly, the Court held that C could not reduce or circumscribe the scope of its public law duty by reliance on the express terms of its contract with FMG, or FMG’s sub-contract with C. Thus, the fact that the sub-contract provided that no reasons for refusal would be forthcoming did not assist the Defendant. 

The (limited) content of the duty – the “ultra precautionary” approach 

18.  Perhaps predictably, C fared less well in regard to the content of the duty of fairness that was owed in the particular circumstances of the case. 

19.  In the Judge’s view, the sensitivity of the subject matter meant that the Defendant was not required to establish that it had reasonable grounds for believing that C had committed, or was connected to, a criminal offence. 

20.  If the police have any basis for suspecting that a person might have been, or might be presently or might in the future be, implicated, even innocently, in activities that could be considered criminal, or might be associated, again even innocently, with criminal elements, it would be justified in refusing security clearance. The Defendant was entitled to adopt an “ultra precautionary standard”. 

21.  Consequently, it would not be appropriate to require the police to disclose in advance to the subject of the security vetting any basis for a contemplated refusal of clearance. There was no requirement of prior notice or an opportunity to make representations. 

22.  While a blanket policy of refusal to provide any information could not be justified, the decision as to what (if any) information could be shared in a particular case would be one for the expert judgment of the Defendant. The Court would only intervene in exceptional circumstances. 

Comment 

23.  The cases concerning when a contract award decision will attract the application of judicial review principles have long been in an uncertain, and unsatisfactory, state. A number of decisions support the view that the fact that a public body exercises statutory or public powers in entering into a procurement or contract is not, without more, sufficient to trigger the availability of judicial review. It has frequently been stated that some further, additional, ‘public law element’ must be made out. 

24.  It is submitted that this approach is unsound in principle and has created undesirable uncertainty and incoherence in the law. As a basic proposition, an act of a public body exercising statutory powers should be subject to the Court’s supervisory jurisdiction. Concerns relating to the risk of prejudicing public bodies in their dealings with private sector economic operators and usurping their role in decision-making can be addressed by carefully defining the nature and content of the public law duties that apply in the particular context, as the present case in fact demonstrates. 

25.  It is to be welcomed that, following the judgment of Elias LJ in Molinaro, another experienced and highly respected administrative court judge has indicated that a simplified and more principled analysis can be applied in this area.

 

Possession Proceedings

July 31st, 2012 by Christopher Knight in Housing

The lower courts continue to clarify the position following the decisions of the Supreme Court in Manchester City Council v Pinnock [2010] UKSC 45; [2011] 2 AC 104 and Hounslow London Borough Council v Powell [2011] UKSC 8; [2011] 2 AC 18 on the application of Article 8 ECHR to defend possession proceedings. In Birmingham City Council v Lloyd [2012] EWCA Civ 969 Lord Neuberger MR took the opportunity to confirm that the proportionality defence was indeed only rarely likely to be successful. Mr Lloyd was a secure tenant who had moved into the flat of his deceased brother, also a secure tenant, but was told to return to his own property. The Court of Appeal overturned the Recorder’s decision, holding that a finding of depression and some difficulty in obtaining alternative accommodation did not approach the proportionality threshold, and the Recorder had impermissibly taken on the decision-making role of the Council.

The Court of Appeal held in Camden London Borough Council v Stafford [2012] EWCA Civ 839 that a review decision in respect of an introductory tenancy under s.129 founded the jurisdiction of the County Court under s.128 and consequently must be clear and unequivocal. It could not be expressed in conditional terms; it must confirm the decision to seek possession or withdraw that decision. Anything which did not unequivocally confirm the decision, as the letter had failed to do in this case, could not be relied upon to seek possession.

Homelessness

In Konodyba v Kensington & Chelsea Royal London Borough Council [2012] EWCA Civ 982 the claimant was the subject of a decision that she was not eligible for housing assistance because she was subject to immigration control pursuant to s.185(2) of the Housing Act 1996. She had previously appealed to the Court of Appeal but abandoned the immigration issue and the Court held that it was a clear abuse of process for her to attempt to re-litigate the same point in fresh proceedings. The housing review officer had to, and did, consider any new points made but did not have to consider ones already abandoned in proceedings. On the facts the Court held that the officer had been correct to ask whether the claimant was unlikely to work in the foreseeable future – a question of fact – in determining whether she was temporarily unable to work as the result of an illness or accident. It was not appropriate to comb officer decisions when the same legal concept could be expressed in various ways.

Human Rights

In Dukic v Bosnia and Herzegovina (App. No. 4543/09) the applicant requested that the State provide him with a replacement flat following the destruction of his during the civil war. The State never responded to the request or the subsequent proceedings, and failed to comply with the domestic court order to provide him a flat. The Court found a breach of Article 6 in the suggestion that the applicant should have to domestically re-litigate the proceedings six years after winning his domestic case. There was also a breach of Article 1 of Protocol 1 because the domestic judgment was sufficiently certain to constitute a possession, but there was no breach of Article 8 because he had no existing home and Article 8 did not provide the right to a home. No damages were awarded.
Huseynov v Azerbaijan (App. No. 56547/10) was a case in which the applicant had been given a voucher for a flat and obtained an order for possession of the flat in 1998. The State took no steps to enforce the order and remove the existing occupant. The Court found a breach of both Articles 6 and 1 of Protocol 1 in the excessive delay in State action, and the consequential excessive burden on the enjoyment of possessions.

In Lindheim v Norway (App. No.s 13221/08 & 2139/10) the Strasbourg Court held that the indefinite extension of a lease on a very low rent did amount to an interference with the Article 1 of Protocol 1 right to enjoyment of possessions. Norwegian legislation which reduced the value of rents under the extended leases to around 0.25% of market value did not strike a fair balance and imposed a disproportionate burden on the leaseholders.

Joint Tenancy and Succession

In Solihull MBC v Hickin [2012] UKSC 39 the Supreme Court held by a bare majority (Lords Mance and Clarke dissenting) that the common law position that where a tenancy is granted to two persons as joint tenants and one of them dies, the tenancy vests in the survivor as the sole tenant was unaltered by ss.87-89 of the Housing Act 1985. Where the surviving joint tenant left the property prior to the succession his right of succession was not altered, but he lost his statutory security and the contractual tenancy had been validly terminated by the notice to quit.

Implementation of the Localism Act 2011

The Allocation of Housing (Qualification Criteria for Armed Forces) (England) Regulations 2012 (SI 2012/1869) (in force from 24 August 2012) provides that an authority may not use the want of local connection so as to exclude specified categories of person from being allocated housing. Those categories are: (a) current or former members of the armed forces who left the service within five years of their application for an allocation; (b) persons who are serving or who have served in the armed forces and who suffer from a serious injury or disability which is attributable in whole or part to that service; and, (c) a spouse or civil partner who is or was living in accommodation provided by the Ministry of Defence and whose former spouse or civil partner was a serviceman whose death was attributable in whole or part to their service.

The Department for Communities and Local Government has published guidance on the ‘Allocation of Accommodation: Guidance for Local Housing Authorities in England’ (June 2012) issued under s.169 of the Housing Act 1996. The Guidance deals with the changes made to allocation schemes by the Localism Act 2011.

 

Public Procurement

July 30th, 2012 by Site Default in Social Care

Turning Point Limited v Norfolk County Council [2012] EWHC 2121 (TCC)

  1. This is the first case to consider the 30-day limitation period that now applies to claims under r.47D of the Public Contracts Regulations 2006 (“the Regulations”). It confirms that, notwithstanding the very short period of time the Regulations now allow claimants, the Courts will enforce the limitation period strictly and that good reason will need to be established for any extension.
  2. The judgment also provides helpful guidance on: (i) the circumstances in which contracting authorities can exclude bids that are subject to qualifications or caveats; (ii) whether there is an obligation to seek ‘clarification’ of qualifications; and (iii) the scope of the obligations on contracting authorities that might arise in implied contract.
  3. Norfolk tendered a five-year contract for various drug and alcohol treatment services. The ITT expressly stated that the procurement would be conducted using the restricted procedure.
  4. The PQQ provided that Norfolk’s only contractual obligation would be to comply with statutory requirements i.e. the Regulations. It also stated that TUPE was expected to apply and that workers currently providing the service would likely transfer to the successful bidder, with resulting pensions and redundancy costs.
  5. The ITT stated that it might not include all information that tenderers require and that Norfolk would have the right to exclude bids that did not comply with its terms. In regard to TUPE (and related pensions and redundancy costs), the ITT required tenderers to include adequate financial provision for such liabilities in the pricing of their bids. It also explicitly stated that no qualifications, caveats or variant bids would be accepted.
  6. On 20 December 2011, Norfolk provided TPL with various TUPE information for those employees expected to transfer. TPL regarded the information as insufficient and submitted some 20 clarification requests. Norfolk’s responses broadly refused to provide further information.
  7. TPL was concerned that in formulating its bid it did not have the information necessary to estimate what its likely TUPE and redundancy costs would be e.g. dates of birth, match between specific job roles/locations and the information given and the redundancy policies of existing providers etc.
  8. Consequently, when TPL submitted its tender on 9 February 2012, it included a note in its pricing section stating that because of the ‘lack of full and complete TUPE information’ its bid was priced on the basis that there would be no TUPE/redundancy costs.
  9. On 12 March 2012, Norfolk wrote to TPL informing it that its tender had been excluded because it included a non-compliant qualification. Norfolk subsequently confirmed that if TPL submitted an unqualified bid at the same price it would have won the contract.
  10. TFL issued proceedings on 28 March 2012. In addition to its claim under the Regulations it also asserted the existence of an implied contract that included an obligation to treat its tender ‘fairly’.
  11. Norfolk sought strike out/summary judgment on grounds of: (i) limitation; where to buy kamagra jelly 100mg in canada and (ii) no arguable case.
  12. Akenhead J formed the ‘clear’ view that that the complaint about the inadequacy of TUPE information was barred by the 30-day limitation period: §36.
  13. TPL must have had knowledge of the relevant breach, failure to disclose sufficient information, by the time it submitted its tender on 9 February 2011 (at the latest). Knowledge of the alleged breach had probably crystallised by 19 January 2012, more than 10 weeks before the Claim Form was issued.
  14. The Court firmly rejected the suggestion that Norfolk was subject to any implied obligation to continue to provide further information to bidders after tenders had been submitted. It was noted that no such requirement applies under the Regulations and it could not be said to be necessary to imply such an obligation in contract: §36(f).
  15. TPL contended that if the 30-day limitation period had expired, then the Court should exercise its jurisdiction under r.47D(4) to extend time. The Court refused to do so.
  16. Akenhead J held that TPL had not demonstrated ‘good reason’. On the facts, it was likely that TPL was aware of timing issues during the procurement process. The fact that the requested extension was for a relatively short period of time, said to be 14 days, was not a ‘good reason’. The statutory limitation period was 30-days, not 30- days plus a further ‘short and reasonable’ period.
  17. For circumstances to constitute a valid ‘good reason’ they will usually be something that is beyond the claimant’s control. Examples could include significant illness or detention of members of the bid team: §37.
  18. The Judge formed the ‘clearest view’ that TPL’s note must be treated as a qualification or caveat to its bid. To assess its effect, the note had to be construed objectively as a potential contractual document. TPL’s subjective intention was therefore irrelevant. The effect of the note was that TPL had not accepted that it would be liable for redundancy costs and that these costs would therefore fall to Norfolk. Under the ITT, it was therefore entirely legitimate to exclude the bid: §39.
  19. There was no obligation in the circumstances to seek ‘clarification’:
    (1) the ITT clearly precluded qualifications and the note plainly breached that prohibition. Such rules were common, inherently fair and operated to ensure a level-playing field for other bidders;
    (2) the ITT did not include an express power to seek clarifications in respect of the pricing section;
    (3) there was no implied power or obligation to seek clarification in regard to a qualification on price. Seeking clarification in this context would create a risk of non-transparency, risk alerting the bidder that its tender was receiving serious consideration and create the opportunity for abusive conduct; and
    (4) the Tideland case was concerned with obvious or formal errors such as transposition, formatting or obvious arithmetical mistakes. It could not assist a bidder who submitted a significant qualification on a voluntary commercial basis: §40.
  20. It was arguable that the terms of the ITT created an implied contract, at least to comply with statutory obligations and the ITT’s express terms. However, the express reference to the Regulations precluded any reliance on further ‘implied’ obligations, such as a general duty to act ‘fairly’: §41.
  21. It followed that the claim should be struck out.CommentThe current approach to the 30-day limitation period
  22. We now have a judgment that considers the proper approach to limitation under the new 30-day regime. The Court here adopted a strict approach, notwithstanding the very short term of the statutory limitation period. The approach previously adopted to limitation, and possible extensions of time, under the old three-month regime will continue to be applied with minimal (if any) alteration. This is so notwithstanding the very significant reduction in the time available to challengers in which to issue proceedings. The judgment also indicates that arguments based on the fact that a claim is ‘just a little’ out of time will generally receive short shrift.
  23. In tandem with the strict approach currently being applied to determining the point in time from which limitation will begin to run (i.e. when a potential challenger first has the opportunity to apprehend the fact of non-compliance with the Regulations, rather than the point when it is appreciated that this is likely to cause loss), this analysis presents a formidable obstacle for many potential challengers.
  24. Even for a sophisticated commercial operator that is familiar with the scheme of the Regulations and the possibility of legal challenge, 30 days is not a great deal of time in which to properly investigate a potential breach, obtain appropriate expert advice, make decisions internally and get proceedings on foot. Realistically, many less well- resourced (and savvy) organisations (including many SMEs) are in practice likely to find themselves unable to exercise their legal rights.
  25. For obvious pragmatic reasons, this is welcome news for contracting authorities. However, viewed objectively, it may be questionable whether the current 30-day limitation period (and the rigour with which it is being judicially applied) is consistent with the object and purpose of the Regulations and the requirement of effectiveness under EU law.
  26. For example, it is interesting to speculate as to whether striking out a challenge with strong prima facie merits that is issued shortly outside the limitation period, perhaps because of the complexity of the underlying factual matrix, is defensible.‘No qualification/caveat/variant’ provisions
  27. The judgment also provides a strong endorsement of the use of ‘no qualification’ or ‘no variant’ provisions in ITTs. This will also be welcomed by contracting authorities.Tender clarifications
  28. While Akenhead J’s analysis regarding the use of clarification must be read in light of the fact that the case concerned an impermissible qualification, a number of the features of his reasoning would appear to be of wider application to clarification more generally. In particular:
    (1) it will always be important to consider whether the ITT actually confers a power or duty to seek clarifications upon the contracting authority; and
    (2) because seeking clarifications necessarily poses the risk of abusive conduct and breaches of the principle of transparency, some weighty countervailing factors will need to be demonstrated to justify any asserted right or obligation to take such steps.Implied contract ‘fairness’ obligations
  29. Finally, the judgment follows a line of recent decisions in holding that where a procurement is subject to the Regulations, or adopts their requirements by incorporation, there will be little scope for asserting implied contractual obligations going beyond the content of those provisions.

 

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