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Combined authority concedes procurement proceedings over approach to late tender response

A combined authority has conceded procurement proceedings over a £300m helicopters contract and agreed to pay the claimant's costs in a dispute over its decision to refuse a late tender response.

Barristers’ chambers 11KBW said that in Developing Assets (UK) Limited (t/a Helioperations) v West Yorkshire Combined Authority HT-2023-000047, Mrs Justice Joanna Smith had been required to consider “the vexed question of the exercise of discretion and the principle of proportionality in the context of the evaluation of late tender responses”.

The set said the claimant, Helioperations, had fully uploaded its final bid to the electronic portal used to conduct the competition before the submission deadline expired, but did not manage to press a ‘submit response’ button before the portal automatically ‘locked’. [11KBW’s emphasis]

West Yorkshire said it would not consider the claimant's bid on the basis that competition rules provided no power to evaluate a 'late' bid in these circumstances. 

The claimant challenged the decision on the following grounds: 

  1. the combined authority misdirected itself in respect of its powers under the competition rules, and 
  2. failed to have regard to the residual power to evaluate late bids conferred under EU law and the principle of proportionality.

The combined authority conceded the proceedings following a short adjournment after the first day of oral arguments. It agreed that its decision to exclude the claimant must be set aside and that it would pay Helioperations' costs.

11KBW said the case was “a useful reminder that while the Court will afford reasoned evaluative judgments of contracting authorities respect, it may be much readier to intervene if a public body has failed lawfully to direct itself to, and apply, its powers".

Joseph Barrett of 11KBW was sole counsel for (instructed by Fran Mussellwhite of Bevan Brittan). The authority was represented by Philip Moser KC and Jonathan Lewis of Monckton Chambers (instructed by Mills & Reeve).

Adam Carey