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Public procurement update

Lynsey Oakdene and Kathryn Vickers consider recent decisions on the role of expedited trials in maintaining automatic suspensions and the admissibility of expert evidence; other notable cases; and the government’s newest judicial review reform proposals.

Expedited trial tips balance in favour of maintaining automatic suspension

The issue of court proceedings in a procurement challenge triggers an automatic suspension of the ability of the contracting authority to award the contract to the winning bidder. If the authority wants to be able to award the contract before the final determination of the claim it must apply to court for the suspension to be lifted. In deciding whether to lift the suspension, one of the factors which the court considers is the balance of convenience, i.e. whether the detriment to the claimant if the suspension is lifted and the contract awarded outweighs the detriment to the authority if the suspension is maintained and it is prevented from awarding the contract.

In Draeger Safety UK Limited v London Fire Commissioner [1], the court held that the balance of convenience lay in maintaining an automatic suspension in circumstances where the court was able to offer the parties an expedited trial. This was despite the contract relating to respiratory protective equipment which was important to public safety, with the procurement likely to be perceived as setting the standard for improved protective equipment in the fire and rescue services sector.

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While the public interest in the timely introduction of new protective equipment to implement operational improvements would be a very strong factor in favour of lifting the suspension, a significant factor was that the court was able to offer the parties an expedited trial to take place in October 2021. Against an estimated lead-in time between contract award and operational commencement of nine to twelve months, a short delay until the autumn, to resolve the procurement challenge, would not have any significant impact on the progress of the improvements. The least risk of injustice was to maintain the suspension pending the expedited trial.

Observations on admissibility of expert evidence in procurement cases

Permission of the court is required for a party to submit expert evidence in court proceedings. In two recent decisions, the court reiterated that such permission will rarely be given in judicial review or procurement cases because the court is not determining the merits of the decision under review but is concerned with the lawfulness of the exercise of the power.

R (Good Law Project) v Minister for the Cabinet Office [2] is one of a series of judicial review claims arising out of the Covid-19 pandemic. It concerned an award of a contract for the supply of services to assist the government with policy development and emergency messaging to the public as part of the pandemic response.

Interestingly, one of the reasons for refusing permission for expert evidence was that, in the field of polling, there was no recognised body of expertise governed by recognised standards and rules of conduct relevant to the question which the court had to decide. Permission was refused in any event because the expert evidence was not relevant (and even if it were, it was not reasonably necessary for determination of the issues in the proceedings). It is important to remember the basic rule that unless evidence is relevant, whether expert or factual evidence, it cannot be admissible.

Bop-Me Limited v Secretary of State for Health and Social Care [3] is an example of a rare case in which permission was granted.

The claimant was the supplier of a certain type of surgical face mask. The defendant said the claimant’s offer was not valid because it failed to supply testing reports particularising the testing values. The claimant argued that the defendant fundamentally misunderstood the requirements of its own specification and/or made errors in its assessment of the offer. The claimant identified four issues for expert evidence.

When deciding whether to permit expert evidence, the court considered (1) whether the case was one where the technical background was so complex that explanatory expert evidence was required, and/or (2) whether it was one of the unusual cases where expert evidence on some or all aspects of the tender evaluation process was required in order to allow the court to reach a proper view on the issues of manifest error or unfairness [4].

The court rejected the application for permission to rely on expert evidence in respect of three of the issues but in respect of the fourth concluded that this was one of the unusual cases where expert evidence on some or all aspects of the tender evaluation process was required as the court would not have any knowledge of its own on the contents of an industry compliant testing report, and whether one was provided in this case.

Other notable cases

Turning briefly to other recent cases of note, in Biffa Waste Services Limited v Leicestershire County Council [5], the court made interesting comments regarding the extent of a contracting authority’s duty of transparency and equal treatment. It rejected the claimant’s application for summary judgment of its claim against the defendant contracting authority alleging breach of transparency and equal treatment principles. Among other things, the judge agreed with the defendant that she should be very cautious of making new law seeking to impose an enforceable legal obligation on contracting authorities to inform bidders each time one or other anonymised rival bidder withdraws or is readmitted to a procurement process.

As this was only a summary judgment application, this is not an end to the matter and it is possible that when it comes to trial the court will ultimately find that the duty of transparency extends to such an obligation. However, the fact that (as acknowledged by the judge) such an obligation would be ‘new law’ might suggest this is unlikely. There is no express requirement for disclosure of such information in the Public Contracts Regulations 2015 (PCR) and, unless the tender documents say that the contracting authority will disclose such information, it is difficult to see a basis for such an obligation.

It will be interesting to see how both the Draeger and Biffa cases play out at trial, if they do not settle in the meantime.

Finally, the decision in R (Good Law Project) v Secretary of State for Health and Social Care [6] is a cautionary reminder of how crucial it is for parties to get the timing and method of service of documents right. This was a judicial review claim challenging the lawfulness of a decision to award a contract for the supply of personal protective equipment during the pandemic. In judicial review proceedings, the procedural rules require service of the claim form on the defendant within seven days after the issue date. The claimant failed to send the sealed (issued) copy of the claim form to the defendant’s specified email address for service until one day after the deadline.

The court found there was no valid service and declined to authorise alternative service or grant an extension of time. The claim form was set aside. The delay of just one day was against a benchmark of seven days, and a material circumstance was the very tight deadline imposed by the PCR for an economic operator, or other person, to challenge the lawfulness of a decision in respect of a public procurement contract. See our recent briefing for details.

Update on reform proposals

In our previous update we referred to the government’s somewhat controversial consultation on proposed reform of the judicial review regime. The government has since published its consultation response alongside a Judicial Review and Courts Bill introduced to parliament on the same day, 21 July 2021.

The government is pressing ahead with proposals to introduce suspended and prospective quashing orders, where the decision which is challenged is only quashed if the public body does not comply with conditions specified by the court and/or the decision is only quashed prospectively from a date determined by the court but not retrospectively. Both remedies will include a list of non-exhaustive factors to consider. The Bill creates a broad presumption for the courts to use these new variations of quashing order where it appears that as a matter of substance, they offer adequate redress in relation to the relevant defect in the decision, unless there is a good reason not to do so.

In a statement, the Law Society’s president said that it opposes prospective-only remedies and that removing or limiting the retrospective effect of an order would mean that nobody who has been a victim of an unlawful state action – not even the person who brought the challenge – would benefit from a ruling that the government had behaved unlawfully. This would have a “chilling effect” on justice by deterring people from bringing legal challenges, in the knowledge that they might gain no redress.

For now, the proposals on ouster clauses (legislative provisions that oust the court’s jurisdiction to review decisions by public bodies) are limited to decisions of the Upper Tribunal refusing permission to appeal from the First-tier Tribunal. This has been included to address concern regarding claims for judicial review of such decisions of the Upper Tribunal Immigration and Asylum Chamber which the consultation claimed had a very low success rate and so were a waste of court time and public money. However, the Bill says that this will be used as an “example to guide the development of effective legislation in the future”, which means it is unlikely we have heard the last of the government’s plans for ouster clauses.

Walker Morris will continue to monitor the Bill as it passes through the parliamentary stages and report on developments.

Lynsey Oakdene is a Director and Kathryn Vickers is a Senior Associate at Walker Morris.

How we can help

Walker Morris is experienced in dealing with public law issues and is also regularly instructed to provide advice on an urgent basis on procurement challenges. If you need any advice or assistance, or have any queries concerning the points raised in this briefing, please contact Lynsey or Kathryn, who will be very happy to help.

[1] [2021] EWHC 2221 (TCC)

[2] [2021] EWHC 2091 (TCC)

[3] [2021] EWHC 1817 (TCC)

[4] BY Development Limited and others v Covent Garden Market Authority [2012] EWHC 2546 (TCC)

[5] [2021] EWHC 1764 (TCC)

[6] [2021] EWHC 1782 (TCC)

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