Public Procurement

August 17th, 2012

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.

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