Who can challenge a procurement decision by way of judicial review?

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Last week, there was much media fanfare over the 18 February 2021 decision of the High Court in favour of the Good Law Project (GLP) in the case brought by them challenging the Health Secretary  (SoS) over the transparency requirements of the Public Contracts Regulations 2015.  At the centre of this media storm was the finding by Chamberlain J that the SoS had indeed breached transparency requirements.  This finding was unsurprising in light of concessions made by the SoS before the hearing.  More interesting, from a procurement law point of view, was the finding by Chamberlain J that the GLP did in fact have standing to bring such a claim, and it is this aspect of the Decision we focus on here.

The GLP Claim

The GLP currently have a number of claims issued against the government which relate to procurement decisions during the COVID-19 pandemic.  The Decision relates to a judicial review claim filed in October 2020 challenging the SoS’s failure to comply with: (i) reg. 50 of the PCR 2015 which requires him to send for publication of a contract award notice (CAN) not later than 30 days after the award of a contract with a value exceeding the applicable limit; and (ii) the policy and principles set out in Crown Commercial Service documents entitled Publication of Central Government Tenders and Contracts: Central Government Transparency Guidance Note (November 2017) (the Transparency Policy) and Procurement Policy Note – Update to Transparency Principles (PPN 01/17, February 2017) (the Transparency Principles), which require publication of the provisions of any contract with a value over £10,000.  As already stated, Chamberlain J agreed that the SoS had indeed breached these requirements.

However, the SoS in his defence had sought to rely on the argument that the GLP lacked standing to bring a claim of this nature and, perhaps somewhat unexpectedly, this argument failed.

Standing

An economic operator can challenge a failure by a contracting authority to comply with its obligations under the PCR 2015, or related policies, by way of a direct claim under the provisions of the PCR 2015.  If someone who is not an economic operator wants to challenge a breach of PCR 2015 obligations, it cannot do so under the PCR 2015 and therefore has to, as the GLP did, bring a claim by way of judicial review.  In any judicial review claim, procurement related or otherwise, the court will always consider if the claimant has “sufficient interest in the matter to which the application relates”.  These rules on standing tend to be interpreted fairly widely, meaning standing tends not to be a barrier for most claimants even if they lack a direct interest in the claim, especially in matters of public importance.

In the procurement context, it was established by the Court of Appeal in Chandler (1) that a non-economic operator may have standing to bring judicial review proceedings to prevent a breach of procurement regulations if (i) they have “a sufficient interest in compliance with the public procurement regime in the sense that he is affected in some identifiable way” by the challenged decision”; or (ii) “the gravity of a departure from public law obligations” justifies the grant of a public law remedy.

Other considerations, which Chamberlain J highlighted in his judgment, include firstly “whether there are more appropriate ways for the alleged breach to be litigated”. In a procurement context, this means the routes of challenge available under the PCR 2015.  Secondly, and as relied on in this Claim by the SoS in his defence of this Claim, the claimant should not be “attempting to use the public procurement regime for a purpose for which it was not created”.  Counsel for the SoS also sought to argue that a failure to publish a CAN in time, as was being challenged in this case, would in principle be challenged by an economic operator if he could show that he had suffered, or risked suffering, consequential loss or damage.

Chamberlain J dismissed the SoS’s arguments and found that the GLP did have standing.  He found it was not realistic to suggest that an economic operator would be able to show any such loss or damage, and there would be little incentive for an economic operator to bring a challenge with only speculative material benefit.  By contrast, the GLP as a claimant had a sincere interest in the issues under challenge and there was no evidence they had improper motive.

[1] (Chandler) v SoS for Children and Families [2009] EWCA Civ 1011


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