Public Procurement Legal Cases – Award Suspensions Remain, Contract Manager Conflicted

Our experience suggests that a small proportion of public procurement professionals find EU legislation absolutely fascinating and love reading about legal challenges and court cases. The rest, perfectly understandably, don't!

However, there are a couple of recent court cases that we'd suggest every public procurement practitioner needs to be aware of and bear in mind for future procurement exercises, for a couple of reasons.

In both cases, they relate to an unsuccessful bidder challenging a contract award decision. That triggered a suspension of the contract award but the contracting authority then was trying to overturn that suspension in the courts. In both cases, the authorities argued that even if the challenge was successful, damages would be enough to compensate the aggrieved bidder. But in both cases the judge said no, the suspension will remain.

Historically, this has been unusual, as courts have generally felt that damages would be sufficient compensation. So it seems to suggest a harder line from the courts, although every case will have its own specific characteristics. But you certainly can’t just assume you can carry on and award the contract and get going on implementation even if there is a challenge.

The other fascinating point suggests that using a contract manager who works on the existing contract as a member of an evaluation panel for the re-tender (very common practice in the public sector, and generally we would have considered it a good idea) might leave the authority open to a charge of “conflict of interest” – something now explicitly mentioned in the latest directives and the 2014 UK Regulations. That issue had never occurred to us before reading about this case.

We’ve written a lot more about these cases on our Public Spend Matters Europe website – an overview of the cases is here, and the discussion about the contract manager issues is here. We strongly suggest that all our readers in the public sector take a few minutes to nip over to PSME and take a look at the full details of the cases.

You don’t want to follow Sunderland City Council or Inverclyde Council into the courtroom, after all!

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First Voice

  1. bitter and twisted:

    Seems to me the judge is an idiot (editor’s note – substituted “idiot” for something much more insulting!) who doesn’t understand what ‘personal’ means,

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