Category: Library of useful resources

In summary if a dissatisfied economic operator brings a claim against a contracting authority, the latter cannot simply abandon the procurement process to avoid the claim.  Amey Highways Ltd v West Sussex County Council [2019] EWHC 1291 (TCC) (24 May 2019) (bailii.org) Amey Highways Ltd v West Sussex County Council [2019] EWHC 1291 (TCC). The…

The case was AbbVie v NHS England [2019] and concerned a £1bn contract for Hepatitis C drugs. This case confirms that contracting authorities/utilities benefit from a broad discretion when designing and setting award criteria. Notably, the fact the model might favour a particular bidder over another does not automatically make the methodology unfair. The case also confirms…

Proof IT SIA v European Institute for Gender Equality (Case T-10/17), considered incumbent advantage. Proof asserted that the vague contract award criteria used gave the evaluation committee excessively broad discretion. This discretion allowed the panel to award more points to the successful tenderer because of knowledge that the provider had acquired during performance of a similar…

SRCL Ltd (“SRCL”) (now Stericycle) challenged NHS England’s decision to award to another bidder a contract for clinical waste services. Bidders were invited to submit bids by way of an e-auction designed to drive prices down through more effective competition. SRCL (the main incumbent) were unsuccessful and brought a challenge alleging that both the winning…

We see instances when contracting authorities believe the clock starts rigidly when they inform bidders of the outcome, however if you withhold information (intentionally or by error) from unsuccessful bidders this 30 day period could start much later and open a challenge at a future date. The case law is clear; The clock is stated…

The court will only interfere in an evaluation if there has been “manifest error”, and when assessing that, evaluators are entitled to act within what is called a “margin of discretion”. Bechtel, an unsuccessful bidder, challenged the outcome and process of the procurement, alleging that there were manifest errors in scoring, that there were inadequate…

“the equal treatment principle requires that comparable situations must not be treated differently and that different situations must not be treated in the same way, unless such treatment is objectively justified” The European Court of Justice (‘Court’) highly significantjudgment on procurement matters – Fabricom SA v Belgium (Judgment Joined Cases C-21/03, C-34/03, 3 March 2005).…

Transparency and a RWIND (reasonably well-informed and normally diligent) tenderer. The issue is not what the invitation to tender meant but whether its meaning would be clear to any RWIND tenderer, and is suitable for objective determination.  The Court should approach such cases by placing itself in the position of the reasonably informed tenderer, looking…