The MOD procured soft facilities management for British bases in Cyprus under the Defence and Security Public Contracts Regulations 2011 and awarded to Sodexo. Ecolog, established in the United Arab Emirates, came second. It was common ground that Ecolog was not an economic operator under those Regulations and could not sue for their breach. It therefore pleaded an implied tender contract obliging the MOD to run the procurement fairly, equally and transparently.
The Court held that an implied tender contract did arise, on the issue of the invitation and Ecolog’s tender, but that its terms were limited to considering that bid, alongside the others, in good faith. There was no wider contract to run the procurement fairly, equally or transparently.