Public Procurement and Appearance of bias/Delay in Judicial Review

March 30th, 2012 by James Goudie KC

Public Procurement

In Case C-599/10, SAG v Upro, the CJEU in a Judgment on 29 March 2012, reiterated (para 40) that the procurement regime “… does not preclude … the correction or amplification of details of a tender where appropriate, on an exceptional basis, particularly when it is clear that they require mere clarification, or to correct obvious material errors, provided that such amendment does not in reality lead to the submission of a new tender”.

However (para 41) on the exercise of the discretion thus enjoyed by the contracting authority, “that authority must treat the various tenderers equally and fairly, in such a way that a request for clarification does not appear unduly to have favoured or disadvantaged the tenderer or tenderers …”.  Moreover (para 42) a request for clarification of a tender may be made only after the contracting authority has looked at all the tenders.  Furthermore (para 43) that request must be sent in an equivalent manner to all undertakings which are in the same situation, unless there is an objectively variable ground capable of justifying different treatment of the tenderers in that regard; and in addition (para 44) that request must relate to all sections of the tender which are imprecise or which do not meet the technical requirements of the tender specifications.

The CJEU also (paras 27-34) addressed issues relating to abnormally low tenders.  Contracting authorities are required to examine the details of tenders which are abnormally low.  For that purpose they are obliged to request the tenderer to furnish the necessary explanations to prove that those tenders are “genuine”.  The existence of a proper exchange of views, at an appropriate time in the procedure for examining tenders, between the contracting authority and the tenderer, to enable the latter to demonstrate that its tender is genuine, constitutes a fundamental requirement, in order to prevent the contracting authority from acting in an arbitrary manner and to ensure healthy competition between undertakings.

Appearance of bias/Delay in judicial review

See R (Berky) v Newport City Council [2012] EWCA Civ 378, in which the Court of Appeal’s holdings included that (1) the decision not to require an environmental statement was not erroneous in law, (2) the appearance of bias on the part of one member of the Planning Committee was not sufficient, absent evidence that the member exercised an undue influence over the other members, to vitiate the Committee’s 8-1 decision, and (3) (by a majority) there had been undue delay leading to prejudice both to other interests and to good administration and relief should be refused.

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