“(1) A licence granted under section 5 or 6 shall be in writing and shall specify the period for which (subject to being revoked or suspended) it is to have effect. (1A) The period specified under subsection (1) must– (a) begin with the date of grant of the licence, and (b) not exceed 15 years. (1B) A licence granted under section 5 or 6 may (subject to the restriction in subsection (1A)(b)) include– (a) provision enabling the period specified under subsection (1) to be extended by the Commission; (b) provision enabling the period specified under subsection (1) to be extended by agreement between the Commission and the licensee.” (a) provision enabling the period specified under subsection (1) to be extended by the Commission; (b) provision enabling the period specified under subsection (1) to be extended by agreement between the Commission and the licensee.”
“The Commission seeks to award the Fourth Licence to the Proposed Licensee identified in the Phase Two Application which proposes the highest credible and deliverable Good Causes Contribution for the Fourth Licence whilst first ensuring support for the Commission’s Statutory Duties of propriety and protecting Participants’ interests.”
“(1) Where – (a) a claim form has been issued in respect of a contracting authority or utility's decision to award the concession contract; (b) the contracting authority or utility has become aware that the claim form has been issued and that it relates to that decision; and (c) the concession contract has not been entered into, the contracting authority or utility is required to refrain from entering into the concession contract. (2) The requirement continues until any of the following occurs – (a) the Court brings the requirement to an end by interim order under regulation 57(1)(a); (b) the proceedings at first instance are determined, discontinued or otherwise disposed of and no order has been made continuing the requirement (for example in connection with an appeal or the possibility of an appeal) …” (a) a claim form has been issued in respect of a contracting authority or utility's decision to award the concession contract; (b) the contracting authority or utility has become aware that the claim form has been issued and that it relates to that decision; and (c) the concession contract has not been entered into, the contracting authority or utility is required to refrain from entering into the concession contract. (a) the Court brings the requirement to an end by interim order under regulation 57(1)(a); (b) the proceedings at first instance are determined, discontinued or otherwise disposed of and no order has been made continuing the requirement (for example in connection with an appeal or the possibility of an appeal) …”
“(1) In proceedings, the Court may, where relevant, make an interim order - (a) bringing to an end the requirement imposed by regulation 56(1); (b) restoring or modifying that requirement; (c) suspending the procedure leading to the award of the concession contract in relation to which the breach of the duty owed in accordance with regulation 50 or 51 is alleged; (d) suspending the implementation of any decision or action taken by the contracting authority or utility in the course of following such a procedure. (2) When deciding whether to make an order under paragraph (1)(a)— (a) the Court must consider whether, if regulation 56(1) were not applicable, it would be appropriate to make an interim order requiring the contracting authority or utility to refrain from entering into the concession contract; and (b) only if the Court considers that it would not be appropriate to make such an interim order may it make an order under paragraph (1)(a). (3) If the Court considers that it would not be appropriate to make an interim order of the kind mentioned in paragraph (2)(a) in the absence of undertakings or conditions, it may require or impose such undertakings or conditions in relation to the requirement in regulation 56(1). (4) The Court may not make an order under paragraph (1)(a) or (b) or (3) before the end of the standstill period. (5) This regulation does not prejudice any other powers of the Court.”
“(2) Subject to paragraphs (3) to (5), such proceedings must be started within 30 days beginning with the date when the economic operator first knew or ought to have known that grounds for starting the proceedings had arisen. … (4) Subject to paragraph (5), the Court may extend the time limits imposed by this regulation… where the Court considers that there is a good reason for doing so. (5) The Court must not exercise its power under paragraph (4) so as to permit proceedings to be started more than 3 months after the date when the economic operator first knew or ought to have known that grounds for starting the proceedings had arisen.”
“[19] … what degree of knowledge or constructive knowledge is required before time begins to run? The knowledge must relate to, and be sufficient to identify, the “grounds” for bringing proceedings … So the question becomes: when is the information known or constructively known to the appellant sufficient to justify taking proceedings for an infringement of the public procurement requirements?”
“the standard ought to be a knowledge of the facts which apparently clearly indicate, though they need not absolutely prove, an infringement.”
“Member States shall ensure that the review procedures are available, under detailed rules which the Member States may establish, at least to any person having or having had an interest in obtaining a particular contract and who has been or risks being harmed by an alleged infringement.”
“A breach of the duty owed in accordance with regulation 50 or 51 is actionable by any economic operator which, in consequence, suffers, or risks suffering, loss or damage.”
“[26] ... Member States are not obliged to make those review procedures available to any person wishing to obtain a public contract, but may also require that the person concerned has been or risks being harmed by the infringement he alleges … [27]… participation in a contract award procedure may, in principle, with regard to Article 1(3) of Directive 89/665, validly constitute a condition which must be fulfilled before the person concerned can show an interest in obtaining the contract at issue or that he risks suffering harm as a result of the allegedly unlawful nature of the decision to award that contract. If he has not submitted a tender it will be difficult for such a person to show that he has an interest in challenging that decision or that he has been harmed or risks being harmed as a result of that award decision. [28] However, where an undertaking has not submitted a tender because there were allegedly discriminatory specifications in the documents relating to the invitation to tender, or in the contract documents, which have specifically prevented it from being in a position to provide all the services requested, it would be entitled to seek review of those specifications directly, even before the procedure for awarding the contract concerned is terminated.”
“[19] … it must be noted that Article 1(3), in referring to any person having an interest in obtaining a public contract, alludes, in a situation such as that in the main proceedings, to a person who, in tendering for the public contract at issue, has demonstrated his interest in obtaining it.”
“[41] … while it may be difficult for a party who has not submitted a tender to establish an interest in obtaining the contract at issue, it is possible to do so. A party does not have to submit a doomed tender in order to prove its interest in obtaining the relevant contract. However, the basic requirement (endorsed by Community law) of having an interest in obtaining the contract (or a version of the contract which is not skewed in favour of a rival) remains.”
“[71] The Court of Justice held that the Directive does not preclude a person from being an eligible person where he has not submitted a tender in these circumstances. [72] Accordingly, the Directive means that such an applicant may be regarded (as distinct from ‘must be regarded’) as an eligible person and so this is a permitted exception to the requirement that a person, to be eligible to challenge a tender, must submit a tender. [73] … for a supplier to be eligible to challenge the procedures for awarding a public procurement contract, it must have an ‘interest in obtaining’ the contract … … [75] … it is clear that the way to show that a party has an interest in a contract is primarily and almost exclusively by tendering for that contract… [78] Regulation 4 is not talking about persons, who have a general interest in tenders that might be established by the State, being able to challenge those tenders. Rather it is quite clear from the wording that it is concerned with persons who have an interest in a specific contract. What better way is there, to establish that a person has an interest in a specific contract, than by tendering for that contract? Unless, of course, it is pointless in her doing so since she will not be awarded the contract because of the allegedly unlawful terms (which is not alleged in this case). Indeed, in support of this interpretation is the fact that the wording of Article 1(3) of the Remedies Directive states that the applicant has to have ‘an interest in obtaining a particular contract’. Similarly as regards the wording of Regulation 4, it refers to an interest in ‘obtaining’ the reviewable contract. Once again logic dictates that a person who claims that they have an interest in ‘obtaining’ a contract prove that fact in one way only (subject to rare exceptions), namely by putting in a bid for that contract in order to obtain it. If you do not put in a bid, then you are guaranteed not to ‘obtain’ it, in which case it is almost impossible to claim that you nonetheless have an interest in obtaining it (save in exceptional cases).”
“If an economic operator drops out of the tendering process for good or bad reason, it is difficult to see that it suffers or risks suffering loss or damage as a result of any breach of duty occurring after it dropped out. It may of course have a perfectly good cause of action if breaches of duty occurred before it dropped out, whether it knew about them or not.”
“CUKL has no business other than operating the Third Licence and pursuing its application for the Fourth Licence, and, if its application for the Fourth Licence is unsuccessful, it will be divested of some or all of its assets and most if not all of its staff, together with their significant expertise and know how. In short, if the Commission proceeds to award the Licence to Allwyn, CUKL will in all probability be put out of business. This cannot be reflected in quantifiable damages.”
“In all these cases of interlocutory injunctions where a man's trade is affected one sees the enormous importance that there may be in interfering at once before the action can be brought on for trial; because during the interval, which may be long or short according to the state of business in the courts, a man's trade might be absolutely destroyed or ruined by a course of proceedings which, when the action comes to be tried, maybe determined to be utterly illegal; and yet nothing can compensate the man for the utter loss of his business by what has been done in that interval.”
“In most cases, unsuccessful bids are part of the normal commercial risks taken by a business and will not have any adverse impact apart from potential wasted costs of the tender and lost profits. Not every failed bid will result in damage to reputation causing uncompensatable loss. There must be cogent evidence showing that the loss of reputation alleged would lead to financial losses that would be significant and irrecoverable as damages or very difficult to quantify fairly.”
“Camelot Lottery Solutions built and deployed a new React Native App for the Irish National Lottery. Launched in August 2020, the app has innovative new features like biometric logins through Face or Touch ID, photo ID verification, single basket for multiple draw-based game purchases, and an exciting 'shake' feature that allows players to shake their phone to get a random line of numbers for their favourite game. The two major US multi-state lottery games, MegaMillions and Powerball, enjoyed large jackpot roll series during the summer and autumn of 2020 before finally being won in January 2021. With both games featuring large jackpots, sales activity in North America was extremely strong for the Illinois State Lottery. These jackpots, coupled with the COVID-19 pandemic and various restrictions in place to limit the physical movement of players, saw the digital share of sales increase significantly.”
“IGT has more than forty years’ experience in operating lotteries globally and serves more than 80 Government and private lottery operators in, Europe, USA, Asia-Pacific, Africa and Latin America. This experience includes consumer-facing lottery operations in Italy, several states within the USA, and the Caribbean, where IGT itself is the lottery licence-holder or operator/manager (that is to say, it holds a similar role to the one Camelot currently holds in the UK). Separately, IGT also has significant 'business to business' operations and experience in supplying products and services to lottery operators globally… The UK is the third largest contributor to IGT revenues outside of Italy and the US. The UK Lottery is one of IGT’s top 10 customers outside of its consumer facing business in Italy… The UK is the 5th largest lottery in the world based on ticket sales. Whilst we work with 8 of the top 10 lotteries in the world (based on ticket sales), the UK is a leading operator that is watched by all those top lotteries across the world. Our standing as a supplier to those other top lotteries is heavily influenced by our continuing established presence in the UK. By losing the UK Lottery business, our standing with those other lotteries will be damaged.”
“The Gambling Commission is a non-departmental public body, and is funded as such. Its sponsoring department is the Department for Digital, Culture, Media and Sport. Our client is aware of the contingent liability for damages that would arise from its Application to Lift being granted, and its Accounting Officer has taken the appropriate steps in order to be able to bring that Application. The making of the Application was duly authorised in that light, as should be self-evident from the fact that the Application was made.”
“As further described in the Deed of Commitment, following the voluntary standstill period, the Commission will issue an Award Notification to the Preferred Applicant and may issue a Reserve Applicant Notice to the Reserve Applicant.”
“‘Award Notification’ means a written notification from the Commission to the Applicant that: (a) the Application has been successful and as a result the Proposed Licensee under the Application has been chosen as the Selected New Licensee; and (b) the Standstill Period has ended and either: (i) there has been no challenge during the Standstill Period to the Commission's decision to name the Proposed Licensee as the Selected New Licensee; or ii) there has been a challenge during the Standstill Period to the Commission's decision to name the Proposed Licensee as the Selected New Licensee but that challenge has been resolved to the satisfaction of the Commission.” (i) there has been no challenge during the Standstill Period to the Commission's decision to name the Proposed Licensee as the Selected New Licensee; or ii) there has been a challenge during the Standstill Period to the Commission's decision to name the Proposed Licensee as the Selected New Licensee but that challenge has been resolved to the satisfaction of the Commission.”
“The Applicant irrevocably undertakes to the Commission that, unless and until this Deed lapses … (a) the Application and the proposals contained in the Application will remain valid and open for acceptance by the Commission for a period of 12 months from the date of this Deed; (b) if it receives an Award Notification, the Applicant shall procure that within 5 Business Days of receipt of that Award Notification … (i) the Proposed Licensee will provide a Resource Availability Assurance Statement to the Commission … (ii) immediately having done so, the Proposed Licensee will execute the Cooperation Agreement and the Proposed Licensee Enabling Agreement.” (i) the Proposed Licensee will provide a Resource Availability Assurance Statement to the Commission … (ii) immediately having done so, the Proposed Licensee will execute the Cooperation Agreement and the Proposed Licensee Enabling Agreement.”
“Before entering into the Proposed Licensee Enabling Agreement, the Commission shall, in consultation with the Applicant, consider modifying the Proposed Licensee Enabling Agreement to reflect: (a) any fact, matter, or circumstance arising between the date of the Application and the date upon which the Proposed Licensee enters into the Proposed Licensee Enabling Agreement; (b) if the date upon which the Proposed Licensee Enabling Agreement is entered into is less than 18 months before the expiry date of the Third National Lottery Licence, the fact of such period being less than 18 months, and shall make any modifications that, after consultation with the Applicant and having given the Applicant reasonable prior notice of any proposed modifications and an opportunity to make representations to the Commission in that regard, it concludes are appropriate.”
“Without prejudice to the Commission's legal responsibilities at law, this Deed shall not give rise to any obligations on the Commission or any rights or remedies of the Applicant or the Proposed Licensee against the Commission.”
“A partial implementation is the worst of all options. Rather than alleviating the delay, a partial implementation will create a great deal of uncertainty over the National Lottery, with an unclear allocation of responsibility between the Incoming and Outgoing Licensee, significantly increased operational risk and at additional cost to Good Causes. A partial implementation could not seriously be said to be in the interests of the National Lottery or Contributions to Good Causes. Amongst other things, it will require us and Camelot and IGT and SGI to work up a partial implementation transition plan; this is not a quick process and will take a number of months. It will then require us to renegotiate our agreements with our suppliers which will affect delivery lead times and cost. It will also create great uncertainty with protection of players funds and prizes. Ultimately, a partial implementation would result in a hybrid of Camelot’s aging 3rd Licence systems and technology being run in parallel with our new 4th Licence systems and technology. Running the National Lottery on this basis is full of risk and in our view is likely to lead to significant disruption in the operation of the National Lottery.”