Challenging a public procurement decision by applying to the courts for judicial review is not for just anybody. A claimant asking for judicial review must generally show that it has ‘sufficient interest’ in the matter to which the claim relates. To challenge public procurement decisions in particular, it was thought that the claimant must be an ‘economic operator’ under the Public Contract Regulations 2006 in order to stand a chance of satisfying this requirement (meaning the claimant had to seek, have sought or have wished to be the person to whom the contract is awarded).
But that was before R (on the application of Chandler) v Secretary of State for Children, Schools and Families was decided. A parent of children entitled to receive local secondary education claimed that the decision of the local authority to approve a University’s expression of interest relating to the establishment of an academy in the claimant’s local area was in breach of the Regulations and the wider public procurement regime. The court decided that the Regulations did not apply in the case, but said that any breach of the Regulations by a contracting authority is an unlawful act and should be reviewable by the court.
It then went on to say that claimants who are not “economic operators” but who are still affected in an ‘identifiable way’ can have a sufficient interest to enable them to apply for judicial review. It also said that, in some cases, the gravity of the breach of public law obligations might justify judicial review “in any event”, but without indicating what types of breach might justify review without the claimant showing sufficient interest.
R (on the application of the Law Society) v Legal Services Commission looked at the “when?” rather than the “who?” of a public procurement challenge. The Law Society claimed that the Legal Services Commission’s procurement process for the provision of family law services to be funded by legal aid was illegal, as it contained unexpected accreditation criteria that were not satisfied, and could not reasonably be satisfied, by a substantial number of potential bidders before the deadline for the submission of bids. This led to a fall in the number of providers that were qualified for contracts with the Legal Service Commission, resulting in fears that access to family law advice would be restricted in a number of areas in England and Wales.
The court ruled that the timing of the announcement of the criteria was irrational, unfair and arbitrary and granted permission for judicial review. This was despite the proceedings being brought some six months after the criteria were published, when the usual limitation period for bringing judicial review proceedings is three months from when the grounds of the claim first arise. The court considered that the claimant’s delay was for good reasons because it was representing a substantial number of affected bidders and was not fully aware of the impact of the criteria at the time of their publication.
It also ruled that the limitation period should be extended in any event as:
- the full impact of the criteria was not known until the LSC announced the results of the tender;
- the issue of providing family law services to vulnerable members of society was important enough to warrant such an extension; and
- most interestingly, the claim was a strong claim and the stronger the claim the more willing a court will be to extend time.
All of which seems to have opened the door to challenging breaches of the public procurement regime rather wider...