“Contracting authorities shall treat economic operators equally and without discrimination and shall act in a transparent and proportionate manner.”
“(1) Not later than 30 days after the award of a contract or the conclusion of a framework agreement, following the decision to award or conclude it, contracting authorities shall send for publication a contract award notice on the results of the procurement procedure. (2) Such notices shall contain the information set out in part D of Annex 5 to the Public Contracts Directive and shall be sent for publication in accordance with regulation 51. … (6) Certain information on the award of the contract or the conclusion of the framework agreement may be withheld from publication where its release— (a) would impede law enforcement or would otherwise be contrary to the public interest, (b) would prejudice the legitimate commercial interests of a particular economic operator, whether public or private, or (c) might prejudice fair competition between economic operators.” (a) would impede law enforcement or would otherwise be contrary to the public interest, (b) would prejudice the legitimate commercial interests of a particular economic operator, whether public or private, or (c) might prejudice fair competition between economic operators.”
“(1) This regulation applies to the obligation on a contracting authority to comply with— (a) the provisions of Parts 2 and 3; and (b) any enforceable EU obligation in the field of public procurement in respect of a contract or design contest falling within the scope of Part 2. (2) That obligation is a duty owed to an economic operator from the United Kingdom or from another EEA state.” “(1) This regulation applies to the obligation on a contracting authority to comply with— (a) the provisions of Parts 2 and 3; and (b) any enforceable EU obligation in the field of public procurement in respect of a contract or design contest falling within the scope of Part 2. (2) That obligation is a duty owed to an economic operator from the United Kingdom or from another EEA state.”
“(1) A breach of the duty owed in accordance with regulation 89 or 90 is actionable by any economic operator which, in consequence, suffers, or risks suffering, loss or damage. (2) Proceedings for that purpose must be started in the High Court, and regulations 92 to 104 apply to such proceedings.”
“(4) Contracting authorities shall comply with paragraph (2) within a reasonable time. … (6) In complying with this regulation, contracting authorities shall have regard to any guidance issued by the Minister for the Cabinet Office on— (a) the form and manner in which the information is to be published on Contracts Finder; and (b) what is a reasonable time… for the purposes of paragraph (4).” (a) the form and manner in which the information is to be published on Contracts Finder; and (b) what is a reasonable time… for the purposes of paragraph (4).”
“2.3 In addition to the legislative requirements, there are policy commitments to publish the associated tender and contract documents in full on Contracts Finder. This applies to all contracts above£10,000 , including call-offs from framework agreements. It is your responsibility to publish any call off contracts that you award above this threshold. 2.4 Documents should be attached to the relevant notice: a. Tender documents should be attached to the opportunity notice. b. Contract documents should be attached to the award notice. c. Where an opportunity was not advertised, for example a framework call-off, the tender documents should also be attached to the award notice.” a. Tender documents should be attached to the opportunity notice. b. Contract documents should be attached to the award notice. c. Where an opportunity was not advertised, for example a framework call-off, the tender documents should also be attached to the award notice.”
“You are expected to publish contracts in full. For the purpose of this requirement, as a minimum, this must include the following (where relevant): • Specification • Terms and Conditions (Ts & Cs) • Associated Schedules (which may include the winning tenderer’s bid) • Where contract specifications or associated schedules contain various diagrams (for example, in some construction contracts), you should publish these where practical (taking into account the any necessary exemptions as set out in section 6) and where the diagrams are already in an electronic format that is likely to be accessible to the public (e.g. word or pdf).” • Specification • Terms and Conditions (Ts & Cs) • Associated Schedules (which may include the winning tenderer’s bid) • Where contract specifications or associated schedules contain various diagrams (for example, in some construction contracts), you should publish these where practical (taking into account the any necessary exemptions as set out in section 6) and where the diagrams are already in an electronic format that is likely to be accessible to the public (e.g. word or pdf).”
“Transparency and accountability of public service delivery data and information builds public trust and confidence in public services. It enables citizens to see how taxpayers’ money is being spent; and allows the performance of public services to be independently scrutinised. It also supports the functioning of competitive, innovative and open markets by providing all businesses with information about public sector purchasing and service providers’ performance.”
“You should ensure you keep proper records of decisions and actions on individual contracts, as this could mitigate against the risk of a successful legal challenge. If you make a direct award, you should publish a contract award notice (regulation 50) within 30 days of awarding the contract.”
“The information must be published in a reasonable time and it is recommended that the information be published no later than 90 calendar days after the contract award date.”
“DHSC officials are continuing to work hard to publish CANs including for coronavirus-related contracts, and all the information your clients seek will be published as soon as that is practical. We cannot at this stage commit to a precise timeframe, but publication will be complete before any judicial review proceedings attempting to compel publication could take place.”
“The Secretary of State does not dispute the importance of the transparency obligations to which DHSC is subject in relation to the award of public contracts. That is precisely why DHSC is currently in the process of publishing CANs for all the contracts that have been entered into during the pandemic. While it is acknowledged that, in the extraordinary circumstances of the current crisis, there have been technical breaches of Regulation 50 of the PCR, there is no unlawful policy of non-publication and all the information whose publication is the relief sought in your client’s proposed claim is already going to be published in due course.”
“By requiring DHSC to answer a series of highly detailed additional questions and conduct a degree of post-contractual analysis that amounts to an additional workstream of internal audit, your claim is only likely to retard the ultimate publication of CANs and other contractual information via the usual channels, as key officials will inevitably be distracted by having to address your clients’ claims instead. Given the need for publication teams to engage with the original procurement teams, publication cannot be readily expedited simply by directing additional administrative resources to the task.”
“In those letters your clients either implicitly or explicitly: 1. Admit that they are routinely breaching their legal obligations to publish contract awards within 30 days and will continue to commit further breaches. All you are prepared to offer is that the contract awards will be published ‘in due course’, and that it is likely they will have been published by the date of any order. We read this as suggesting that this litigation will determine the timing of publication. 2. Admit that they are routinely breaching their policy of publishing the contracts themselves, and will continue to do so. The correspondence is conspicuously silent on the issue of publishing the contracts themselves. 3. Provide no timescale for addressing these breaches. 4. Adopt the proposition that so long as any identifiable failures are addressed by the time the Court becomes involved, the claim should be dismissed.”
“That a list of unpublished contracts will be provided within a further 7 days. It is not credible for your clients to suggest that this information is not readily available, whilst in the same breath assuring us that they are committed to publishing contract awards eventually. Your clients must know to whom they have agreed to pay vast sums of public money.”
“Your characterisation of the Pre-Action Response, in particular the first four numbered bullet points of your letter of11 September 2020 , is not accepted. Indeed, the position we sought to express is the precise opposite of how you purport to read it. For the avoidance of doubt, no admissions are made in the terms you advance.”
“21. In so far as the relevant legal framework is concerned, the Secretary of State does not dispute the obligation contained in regulation 50 PCR 2015, neither does he dispute the existence or contents of the various documents which the Claimants identify and label as the ‘Transparency Policy and Principles’ (SFG, §§5-20). In particular, the Secretary of State does not dispute the importance of the obligation of transparency to which he is subject in the award of public contracts. 22. However, the Secretary of State does refute, in the strongest terms, any suggestion that to the extent that he may not yet have complied with the terms of regulation 50 PCR 2015 or followed the Transparency Policy and Principles in respect of any particular contracts that evidences ‘widespread non-compliance’ and/or that he has made a conscious decision to deprioritise compliance. The facts indicate that any such contention is without foundation.”
“If the defendant were to give formal binding undertakings to the court in respect of his intended timely compliance with his legal obligations, then consideration would have to be given by the claimant as to whether it is a proportionate use of the court’s resources for the claim to continue.”
“18. There is no DHSC policy, unpublished or otherwise, not to comply with the requirements of Regulation 50 PCR or otherwise act in a nontransparent manner. On the contrary, even during the recent pandemic when DHSC’s procurement activity has had to increase exponentially (as to which see further below), I have consistently reminded the procurement teams of their obligations in this regard, and contract information and the redacted contracts themselves continue to be published online on a daily basis. 19. Nor has there been any decision, request, or guidance that transparency should be deprioritised because of the crisis. It is true that in the early stages of the pandemic, resources were principally focused on making goods and services available for the pandemic response and keeping the NHS open at a moment of national crisis. However, this does not mean that transparency obligations were ignored. Our priority in the first instance is always to publish a CAN where required, given the legal deadline to publish within 30 days; in view of the resource constraints and further difficulties explained below, we have focused on this before putting contract information on Contracts Finder, given that the legal obligation here under Regulation 108(4) PCR is only to publish the information on the domestic platform ‘in a reasonable time’.”
“(a) Excluding contracts awarded less than 30 days before that date, the Department has awarded a total of 592 contracts for which publication of a CAN is required. All 592 CANs have been published. (b) Excluding contracts awarded less than 90 days before that date, the Department has awarded a total of 892 contracts for which publication of a Contracts Finder notice is required. Of those, 823 Contracts Finder notices have been published (i.e. 92%).”
“While government had the necessary legal framework in place to award contracts directly, it had to balance the need to procure large volumes of goods and services quickly, with the increased commercial and propriety risks associated with emergency procurement. We looked in detail at a sample of contracts selected on a risk basis. Although we found sufficient documentation for a number of procurements in our sample, we also found specific examples where there is insufficient documentation on key decisions, or how risks such as perceived or actual conflicts of interest have been identified or managed. In addition, a number of contracts were awarded retrospectively, or have not been published in a timely manner. This has diminished public transparency, and the lack of adequate documentation means we cannot give assurance that government has adequately mitigated the increased risks arising from emergency procurement or applied appropriate commercial practices in all cases. While we recognise that these were exceptional circumstances, there are standards that the public sector will always need to apply if it is to maintain public trust.”
“These failings also matter because they erode public trust that taxpayers’ money is being spent wisely, and that it will not just be handed to the wellconnected, with lax safeguards. Had publication been made in good time, and proper transparency been in place, the existence of the ‘VIP’ channel (later renamed ‘high-priority lane’) may have more quickly come to the attention not only of MPs and others seeking to scrutinise the Government’s activities, but also to economic operators, who may then have been able either to challenge awards made using it or to investigate its operation themselves. In any event, transparency would have better enabled a more level playing field, rather than benefitting those who had the right ‘connections’ to Ministers and officials.”
“There is no serious dispute that the Defendant failed to comply with his transparency obligations… : see the often regrettably opaque admissions at Detailed Grounds, §§18, 28, 37, 38, 39(a).”
“It is conspicuous that out of the many references the Claimants provide in this paragraph of their skeleton argument to the Secretary of State’s Detailed Grounds, they fail entirely to reference paragraphs 29 and 30. Those paragraphs cannot sensibly be read in any other way than as an admission that the Secretary of State accepts that he is bound by the obligations in regulation 50 and, as at the date of the Detailed Grounds, that he had not complied with them in full.”
“(1) The Defendant has systematically failed to comply with his obligations under regulation 50 of thePublic Contracts Regulations 2015 to send the required contract award notice to the [EU Publications Office] for publication within 30 days of an award of the contract for supplies and all services relating to COVID-19. (2) The Defendant has systematically failed to comply with his obligations under regulation 108 of thePublic Contracts Regulations 2015 to publish the required contract award notice on Contracts Finder within a reasonable time of an award of a contract for supplies and/or services relating to COVID-19. (3) The Defendant has unlawfully failed to comply with Government policies to publish on Contracts Finder within the timescales set out in those policies [sc. the Transparency Policy and Principles] copies of contracts for supplies and/or services relating to COVID-19, redacted in accordance with those policies.”
“(1) The Defendant shall, within 14 days, comply with his obligations under regulation 50 of thePublic Contracts Regulations 2015 to send for publication the required contract award notice in respect of all awards of contracts for supplies and/or services relating to COVID-19 made 16 days or more before the date of this Order of which he is aware and for which he is responsible (including, for the avoidance of doubt, relevant contracts awarded by executive agencies of the Department of Health). (2) The Defendant shall, within 28 days, send for publication on Contracts Finder contract award notices in respect of all awards of contracts for supplies and/or services relating to COVID-19 made 62 days or more before the date of this Order of which he is aware and for which he is responsible (including, for the avoidance of doubt, relevant contracts awarded by executive agencies of the Department of Health). (3) The Defendant shall, within 56 days, publish on Contracts Finder copies of all contracts for supplies and/or services relating to COVID-19 of which he is aware and for which he is responsible (including, for the avoidance of doubt, relevant contracts awarded by executive agencies of the Department of Health). Such contracts shall be redacted only insofar as would be lawful had they been requested in a request made pursuant to theFreedom of Information Act 2000 .”
“In any event I have strong doubts about the claimants’ standing to raise this issue, though I need express those doubts only briefly. The correct procedure is a matter of obvious concern to tenderers or would-be tenderers, but those persons have their own remedies under the regulations themselves. The claimants have not been shown to be affected in any way by the choice of tendering procedure. They have seized on the point simply as a fall-back way of trying to stop the project. I see no wider public interest to be served by allowing a challenge, and in all the circumstances the claimants should not in my view be regarded as having a sufficient interest for the purposes of the PFI challenge.”
“Economic operators can test the question of legality. It would drive a coach and horses through the requirement for standing if the importance of the issue justified standing in such circumstances. It would mean that people with no real interest in the question could bring judicial review proceedings.”
“77. Forbes J [the first-instance judge]… accepted the submission that a failure to comply with any of the 2006 Regulations gives rise only to a private law claim. Such a conclusion has potentially far-reaching implications. It means that a person who is not an economic operator entitled to a specific remedy under regulation 47 can never bring judicial review proceedings in respect of that failure unless he can bring himself within the exceptional type of claimant in the Law Society case. We consider that the judge’s proposition goes too far. The failure to comply with the 2006 Regulations is an unlawful act, whether or not there is no economic operator who wishes to bring proceedings under regulation 47, and thus a paradigm situation in which a public body should be subject to review by the court. We incline to the view that an individual who has a sufficient interest in compliance with the public procurement regime in the sense that he is affected in some identifiable way, but is not himself an economic operator who could pursue remedies under regulation 47, can bring judicial review proceedings to prevent non-compliance with the 2006 Regulations or the obligations derived from the Treaty, especially before any infringement takes place: see generally Mass Energy Ltd v Birmingham City Council [1994] Env LR 298, 306, cf Kathro’s case[2001] 4 PLR 83 , where Richards J held that the claimants were not affected in any way by the choice of tendering procedure. He may have such an interest if he can show that performance of the competitive tendering procedure in Directive 2004/18 or of the obligation under the Treaty might have led to a different outcome that would have had a direct impact on him. We can also envisage cases where the gravity of a departure from public law obligations may justify the grant of a public law remedy in any event. However, while the court is in general bound to ask itself why a public law remedy is necessary when private law remedies are available, once permission to bring judicial review proceedings has been given, then, unless it is appropriate to deal with standing as a preliminary issue, there is likely to be little point in spending valuable court time and costs on the issue of standing. In that situation, we would not encourage the court to embark on a complex argument about standing. This will especially be the case where standing is a borderline issue. 78. However, in this case the observations of Richards J in Kathro’s case are particularly apposite. Ms Chandler states in her witness statement that she is sceptical about academy schools. She fears that they select the most gifted children as pupils. She is concerned that academy schools are run more like businesses than schools. Her first choice would be for her children’s school to be run by the local education authority. What Ms Chandler wants to happen is that there should be a competition to determine who should run the new school in Camden and she suggests that she should have the right to be consulted if the public procurement regime applied. In fact there would be no consultation of the kind she seeks. Ms Chandler is not challenging the Secretary of State’s decision because of any interest that she has in the observance of the public procurement regime but because she is opposed to the institution of academy schools. She is thus attempting, or seeking, to use the public procurement regime for a purpose for which it was not created. In all the circumstances, it would, in our judgment, be outside the proper function of public law remedies to give Ms Chandler standing to pursue her claim.”
“152. It is well-established that a direct financial or legal interest is not required to establish standing to bring a claim for judicial review: R v Inland Revenue Commissioners ex parte National Federation of SelfEmployed and Small Businesses Ltd[1982] AC 617 , at 694B-C; R v Secretary of State for the Environment ex parte Rose Theatre Trust Co.[1990] 1 QB 504 , at 520D. Although there is a specific remedy for economic operators under the 2006 Regulations, this does not preclude claims for judicial review by those who are not economic operators (e.g. R (Law Society) v Legal Services Commission[2007] EWCA Civ 1264 ). 153. This claim is distinguishable on the facts from R (Chandler) v Secretary of State for Children, Schools and Families[2010] LGR 1 , where the court held that the claimant lacked standing to bring a judicial review claim because she did not have any interest in the observance of the public procurement regime, being motivated by her political opposition to academy schools. In contrast, the Claimant in this case does not pursue any ulterior motive. He seeks what the procurement process is intended to provide, namely, an open competition to allow Winchester to select the development which best fulfils its needs.”
“39… The approach taken by the Court of Appeal in Chandler’s case[2010] PTSR 749 is in my view clearly grounded in a conventional approach to an assessment of standing. However, that conventional approach, focused upon the purpose and policy of legislation being invoked, leads to a much more restrictive qualification for standing in procurement cases than would apply in judicial review generally. 40. It is clear from the 2006 Regulations… that the purpose of those Regulations and the Directive which lies behind them, is firstly, to provide for an open and transparent system for the competition for public contracts in the interests of securing a fair and efficient market for those contracts and secondly, to provide a bespoke system of remedies for those parties who are directly involved in competing for such contracts and participating in the market for them. This regime is quite clearly tightly focused on those directly engaged with and actively seeking the benefit of obtaining public contracts that fall within the scope of the 2006 Regulations. The public interest is no doubt served by these aims and objectives of the 2006 Regulations (for instance, by fostering value for money and the objective evaluation of bids for public works), but that is very different from saying that it follows that any member of the public could have an interest in the enforcement of those Regulations which should be recognised by the grant of standing in judicial review. It is in my view entirely consistent with the purpose of the Regulations to confine standing in any judicial review claim brought outside the extensive range of remedies available to economic operators, and by a person who is not an economic operator, to only those who ‘can show that performance of the competitive tendering procedure… might have led to a different outcome that would have had a direct impact on him’.”
“It follows that I do not feel able to follow the approach which was taken by Lang J in Gottlieb’s case… for the following reasons. Firstly, it is pertinent to note in my opinion that Lang J recognised that for the claimant in that case to be found to have standing to bring the claim it would be necessary to distinguish Chandler’s case. For the reasons I have already given that must be right. I am, however, unable to accept Lang J’s reasons for distinguishing Chandler’s case and reaching the conclusions which she did. Her grounds for distinguishing the claimant in Gottlieb’s case from Chandler’s case, set out in para 153, related to considerations of ulterior motive, which she considered existed in Chandler’s case but which did not arise in the case before her as the claimant genuinely wanted to have an open competition for the procurement of the development partner for the development. The difficulty with that analysis is that in my view it does not engage with the reason why there is the restricted test for standing set out in Chandler’s case, namely the policy, aims and objectives of the 2006 Regulations and their focus on the interests of economic operators. As I have set out above, in my view what was being examined in para 78 of the Court of Appeal’s decision in Chandler’s case was not directly related to ulterior motive but rather a demonstration of the distance between the interests of the claimant and the policy and purpose of the public procurement regime. It appears clear that had the Chandler test been applied in Gottlieb’s case the claimant in that case would not have established that he had standing to bring the claim.”
“the importance of vindicating the rule of law…; the importance of the issue raised…; the likely absence of any other responsible challenger…; the nature of the breach of duty against which relief is sought…; and the prominent role of the applicants [in the relevant subject area]”
“…it is important to remind parties of the need to ensure that those who bring claims for additional review are limited to those best placed to bring the claim. This is because adding unnecessary claimant is likely to increase the costs of the litigation, if only by requiring solicitors to send out extra reports on the litigation. It is also because parties to an action are in a distinct position, for example by receiving a confidential draft of the judgement of the time when it is circulated to the parties for typographical and other corrections before it is handed down in court.”
“In circumstances of widespread breach by the Defendant of regulation 50 and of the Transparency Policy and Transparency Principles, it is apparent that the Defendant – whether personally or through his officials – has made and approved a conscious decision to de-prioritise compliance with regulation 50 and with the Transparency Policy and Principles.”
“The court is satisfied that it should grant the declaration sought, the relevant breach of art.13 having been clearly established. The fact that the breach has been conceded is not, in the court’s view, a sufficient reason for declining to grant a declaration, where there are no other discretionary bars to the grant of relief. Such an order is appropriate both as a formal statement of the legal position, and also to make clear that, regardless of arguments about the effect of arts 22 and 23, the way is open to immediate enforcement action at national or European level.”
“…in circumstances where a public body has acted unlawfully but where it is not appropriate to make a mandatory, prohibitory or quashing order, it will usually be appropriate to make some form of declaratory order to reflect the court’s finding. In some cases it may be sufficient to make no order except as to costs; but simply to dismiss the claim when there has been a finding of illegality is likely to convey a misleading impression and to leave the claimant with an understandable sense of injustice. That said, there is no ‘must’ about making a declaratory order, and if a party who has the benefit of experienced legal representation does not seek a declaratory order, the court is under no obligation to make or suggest it.”