UK High Court rules that public procurement procedure not subject to judicial review

The UK High Court has dismissed a challenge by an unsuccessful bidder who had alleged that a public procurement procedure conducted by the Welsh Assembly and the Forestry Commissioners was irrational and unfair. The Court held that there were insufficient public law aspects for it to be subject to judicial review.

In September 2005, the Forestry Commissioners in Wales tendered for wind farm development contracts.  The tender procedure was conducted outside the EU procurement rules.  Expressions of interest were invited and interested operators asked to complete a pre-qualification questionnaire.  Bids were assessed by reference to certain criteria, with each section scored out of 10 and a score of 5 being sufficient for pre-qualification.  Gamesa Energy UK Limited (Gamesa) was notified that it had not prequalified.  Gamesa claimed that the decision was flawed, irrational and unfair, and/or was taken in breach of its legitimate expectation.  In particular, Gamesa claimed that it was not made clear (i) what information was required in relation to previous project specific experience; (ii) that no marks would be given for any uncompleted previous projects.  Gamesa also claimed that the marking system was unfair in the circumstances as marks of all the projects were taken into consideration, including nil marks for incomplete projects, and that marks awarded in relation to past project experience were inconsistent with marks under other subsections and/or were inherently irrational.

The main question considered by the UK High Court was whether the procurement process was subject to judicial review, i.e. whether there was a "sufficient public law element".  The Court held that the fact that the procurement process was conducted by a public body, in exercise of statutory functions, and involved the expenditure of public money, may not be sufficient to justify a judicial review of the process.  The Court went on to say that there were no sufficient public law aspects in this case.  In particular, the Court noted that, as long as the process was conducted in good faith and without corruption, the defendants had a discretion in how it was carried out.  Although the Court did not rule out a public law challenge to a procurement process on the basis of irrationality, it stated that the cases where this would be appropriate would be rare.  The Court stated that, to allow challenges to tendering processes on the basis that the process is unfair to a particular bidder (but where the process was conducted in good faith and without discrimination) would lead to an unreasonable impediment to a public body.

Source: http://competition.practicallaw.com/8-204-0972