Our December 2008 edition of the Updater (December 2008 Updater):

  • summarised:
    • the key aim of the Public Contracts Regulations 1996 (Regulations), namely, to open up the award of contracts by public bodies to undistorted competition; and noted that this objective was based on a number of “EC Treaty” principles, including the principle of transparency; and
    • Regulation 30 - which sets out requirements relating to the basis on which contracting authorities may award contacts; and
  • reported on the case of Letting International Ltd v London Borough of Newham [2008] EWHC 1583 (QB), which involved the procurement by the London Borough of Newham (Newham) of two framework contracts in relation to the procurement, management and maintenance of private sector leased properties.

The Letting case

In the Letting case, the court found that Newham had acted unfairly, without the requisite transparency and contrary to Regulation 30 by failing sufficiently to disclose to tenderers the contract award criteria and weightings in advance and by failing to apply those criteria which had been disclosed.  

According to the court, in the Letting case:

  • the transparency principle required disclosure of “all the elements” taken into account by the contracting authority in its evaluation of tenders; and
  • in determining what information a contracting authority must disclose, the court’s focus must be on substance (and not on labels).

In Letting, the court invited the parties to agree upon the remedy to be adopted, indicating that it might be appropriate for Newham simply to add the name of the unsuccessful tenderer as one of the successful tendering parties who would then enter into a framework agreement with Newham. The parties subsequently agreed to do this.

The court in Letting was therefore not required to make an order in relation to the remedy the claimant contractor was entitled to receive.  

Two further cases

Two further cases, determined by the courts in Northern Ireland, have recently been reported, both of which (like Letting) relate to the award by public bodies of framework agreements and alleged breaches of the Regulations.

However (unlike Letting), in both of the further cases, there was no indication that the parties had tried to agree upon the remedy to which the claimant contractor was entitled; instead, the court had to determine what remedy was appropriate in the circumstances.