The claimant solicitors had failed to submit their tender for a new contract in time. The respondent refused to accept the late submission. The claimant said that the respondent had not directly notified it of the deadline and so failed to meet its obligations under the 2006 Act and European law, and that the refusal to extend time was a disproportionate response. The information had been provided by email and on the LSC web-site.
Held: The claim failed. Past dealings had given rise to no sufficient expectation that the defendant would write to existing franchisees. It was not appropriate to try to derive any principle for tender procedures in criminal law.
The purpose of the equal treatment obligation is to ensure the development of effective competition for public contracts, leading to the selection of the best bid, and therefore generally forbids differential treatment of entities in a comparable competitive position. This obligation will generally require all potential bidders to be given access to substantially the same information, but it does not absolutely prevent the contracting authority from drawing the tender process to the attention of particular firms, provided that they are not thereby given access to information which is either unavailable to or less readily intelligible by other firms. The objective of the equal treatment obligation is to afford equality of opportunity to all reasonably well-informed and diligent potential tenderers, exercising ordinary care. Equal treatment does not necessarily require identical treatment. The objective of affording equality of opportunity may permit, and in some cases require, differences in the mode of advertisement of a tender, provided that the end result is that substantially the same information is made available to all potential tenderers. The equal treatment obligation does not of itself require that every possible tenderer is in fact notified.
The defendant had acted reasonably in not extending the deadline. The claimant was itself at fault in not making the application: ‘the firm had in my view demonstrated a lack of reasonable care and diligence in the protection of its own commercial interests in failing either to monitor the LSC website, to subscribe to its Update service or to study the Law Society Gazette with proper care.’
Briggs J
[2010] EWHC 960 (Ch)
Bailii
Public Contracts Regulations 2006 47, Directive 2004/18/EC
England and Wales
Citing:
Cited – Commission v France C-225/98 ECJ 26-Sep-2000
Europa (Judgment) Failure of a Member State to fulfil its obligations – Public works contracts – Directives 71/305/EEC, as amended by Directive 89/440/EEC, and 93/37/EEC – Construction and maintenance of school . .
Cited – Commission v France C-16/98 ECJ 5-Oct-2000
ECJ (Judgment) Failure of a Member State to fulfil its obligations – Directive 93/38/EEC – Public works contracts in the water, energy, transport and telecommunications sectors – Electrification and street . .
Cited – Tideland Signal v Commission ECFI 27-Sep-2002
Europa Public procurement – Rejection of tender – Failure to exercise power to seek clarification of tender – Action for annulment – Expedited procedure. . .
Cited – Commission v CAS Succhi di Frutta (Judgment) ECJ 29-Apr-2004
Europa Appeal – Common agricultural policy – Food aid – Tendering procedure – Commission decision amending the conditions after the auction – Payment of successful tenderers in fruit other than those specified in . .
Cited – J B Leadbitter and Co Ltd v Devon County Council ChD 1-May-2009
The claimant said that its tender had been wrongfully excluded from the defendant’s procurement process. . .
Cited – Commission v Greece (Law Relating To Undertakings) ECJ 12-Nov-2009
ECJ Failure of a Member State to fulfil obligations – Public procurement -Directive 93/38/EEC Contract notice – Consultancy project – Criteria for automatic exclusion – Qualitative selection and award criteria. . .
Cited – Regina v Department of Education and Employment ex parte Begbie CA 20-Aug-1999
A statement made by a politician as to his intentions on a particular matter if elected could not create a legitimate expectation as regards the delivery of the promise after elected, even where the promise would directly affect individuals, and the . .
Lists of cited by and citing cases may be incomplete.
Legal Professions, European, Commercial, Legal Aid
Updated: 11 November 2021; Ref: scu.415084