Menai Collect Ltd & Anor, R (on the application of) v Department for Constitutional Affairs & Anor [2006] EWHC 727 (Admin)

Friday April 7th, 2006
Neutral Citation Number: [2006] EWHC 727 (Admin)
Case No: CO/1791/2006

IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL
07/04/2006

B e f o r e :

THE HON. MR. JUSTICE McCOMBE
____________________

Between:

The Queen on the application of
MENAI COLLECT LIMITED
NORTH WEST COMMERCIAL SERVICES LIMITED

Claimants

- and -

DEPARTMENT FOR CONSTITUTIONAL AFFAIRS
and
SWIFT CREDIT SERVICES LIMITED

Defendant

Interested Party

____________________

Nigel Giffin QC (instructed by LG Williams & Prichard) for the Claimants
Jason Coppel (instructed by Treasury Solicitor) for the Defendant
The Interested Party was not represented
Hearing dates: 16 and 17 March 2006

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Mr Justice McCombe :

    (A) Introduction

  1. This is an application for judicial review brought by the Claimants challenging the decision of the Defendant, made on or about 23 January 2006, to award a contract for the provision of “enforcement services” for Magistrates’ Courts on the Wales and Chester Circuit, called by the Defendant the Wales and Cheshire Region (“the Region”), to the Interested Party in preference to the Claimants. The Claimants tendered for the contract as a “consortium”. It is the Claimants’ contention that the Defendant’s Project Board (see below) which made the relevant decision was kept in ignorance of material information and was given an inaccurate view of the facts. It is argued that that Board,

    “was encouraged to proceed on the basis that the Wales and Cheshire Region was content for the contract to be awarded to [the Interested Party], when in reality local HMCS managers had expressed concerns about the proposed decision on the basis of current performance of the Claimants and [the Interested Party] respectively”.

    (See paragraph 2 of the Claimants’ written argument.)

    (B) Facts

  2. The services to be provided under the contract are enforcement services to the courts concerned, consisting of the execution of distress warrants and clamping orders, with the aim of securing payment of fines imposed and other financial orders made by those courts. Pursuant to the Courts Act 2003, an executive agency of the Defendant, known as Her Majesty’s Courts Service (“HMCS”) took over the administrative operations of the Magistrates’ Courts from Magistrates’ Courts Committees (“MCCs”) with effect from 1 April 2005. Prior to that date arrangements for enforcement were made by individual MCCs for the courts for which they were responsible. However, the Defendant had decided that for the future enforcement services would be provided under contracts to be entered into, following a tendering process, in respect of each of HMCS’s seven regions of which the Region in this case is one. The contracts to be entered into are made or are to be made pursuant to Section 2(4) of the 2003 Act, which enables the Lord Chancellor to,

    “…enter into such contracts with other persons for the provision, by them or their subcontractors, of officers, staff or services as appear to him appropriate for the purpose of discharging his general duty in relation to the courts.”

    The same section of the Act removes from that power contracts for the provision of officers and staff discharging functions of a judicial nature and in relation to the administrative work of the courts.

  3. For the purpose of conducting the tendering process, the Defendant appointed a Tender Evaluation Panel (“the Panel”) and a Project Board (“the Board”). Each of these bodies included representatives of each of the seven HMCS regions, nominated by the senior executive officer of the relevant region, the Regional Director. For this Region Mr. Lyn Harding was appointed to the Panel and Mr. Howard Matthews was appointed to the Board. In summary, it was the function of the Panel to send out invitations to tender and to carry out the detailed evaluation of tenders received; it was the Board’s function to oversee the process and to decide whether or not to accept recommendations made by the Panel.
  4. The proposed contract for each region was advertised on an internet site known as “Government Opportunities” which holds details of contracts being offered by government departments. Information was also sent out directly to enforcement contractors already working for Magistrates’ Courts and to others believed to be interested in the work. Those interested were then required to submit a Pre-Qualification Questionnaire (“PQQ”) to provide information to HMCS enabling it to decide which contractors should be invited to tender. Eighty-one PQQs were sent out and 34 were returned completed. In August 2005, the Panel decided to shortlist 20 potential contractors. On 1 September 2005 the Board approved that shortlist. On the next day invitations to tender, with instructions setting out the tender evaluation criteria, were sent to the 20 contractors on the shortlist. The tender documents required the contractors to provide answers to questions under various heads including contract management, performance, staffing and “other” matters, the last of which required details about existing enforcement contracts with volumes of debts to be collected and volumes of debts actually collected. The deadline for response was 17 October 2005. On 12 September 2005 a briefing day was held to provide further information to potential tenderers. By the closing date 14 tenders had been received of which three related to the Region’s contract. These three were from the Claimants, the Interested Party and one other contractor.
  5. In October 2005, before the tenders were opened, the Panel agreed a formal plan for the evaluation of tenders received, containing a scoring system of marks to be applied to the answers to each of the questions posed and a system of weighting designed to reflect the relative importance to HMCS of each of the questions answered. This plan provided detailed criteria for assessing the tenders received, including markings on whether the performance rates proposed were acceptable and would be likely to increase over the contract term. It also required information regarding current contracts.
  6. After receipt, the tenders for this Region’s contract were marked separately by Mr. Harding, the Region’s representative on the Panel, and by two national officials on the Panel, Mr. Ian Wallace and Mrs. Lesley Pyne. Mr. Harding had been authorised to involve other managers from the Region and invited each of the HMCS Areas to send their “Regional Enforcement Forum” representative to a meeting with him on 21 October. Representatives from the North Wales (Mrs. Margaret Jones) and South Wales (Mr. Gareth White) Areas attended, as did Gwent (through Mr. Harding himself); there was no attendance from the Dyfed Powys or Cheshire Areas.
  7. Mr. Harding marked only the three tenders for the Region. Mr. Wallace and Mrs. Pyne marked all 14 tenders received in respect of all the HMCS regions, including this Region. This process resulted in the following marks for the Claimants: 288 (Harding), 220 (Wallace) and 232 (Pyne); the marks for the Interested Party were 280 (Harding), 238 (Wallace) and 269 (Pyne). Thereafter, on 26-28 October 2005, the Panel met to discuss and moderate the scores on each tender. This process resulted in final scores of 248 for the Claimants and 272 for the Interested Party. On the final day of that process the Panel decided to ask eight contractors nationally, who had achieved scores of 242 or above, to give presentations. Thus, each of the three tenderers for this Region was so invited. The presentations to the Panel were made between 22 and 24 November 2005. The result in the case of this Region was adjusted scores of 286 for the Claimants and 292 for the Interested Party.
  8. It is what happened thereafter that gives rise to the complaint in this case.After completion of the re-marking on 23 November Mr. Harding telephoned colleagues in this Region to tell them the scores reached and to ask them whether there was any information that they wished to be taken into account. Mr. Harding informed the panel the following day that, while he would support the decision to favour the Interested Party’s bid, there was a feeling in certain parts of the Region that the Claimants were better suppliers than the Interested Party and there was a slight preference for the former to be awarded the contract. (It is submitted by the Claimants that in truth examination of the information received from local sources indicated that the officials consulted in the South Wales and Gwent Areas of the Region “were concerned that the evaluation panel were about to saddle them with a second rate contractor”, see paragraph 9 (xvi) of the Claimants’ written argument.)
  9. Mr. Harding was deputed by the Panel to obtain further information from the Region. In addition it was decided to put a list of questions to three external referees for each of the tenderers. The Panel deputed Mr. Wallace, in conjunction with another Panel member, Mr. John McKay, the moderator of the evaluation team, to assess the information received and to bring the matter back to the panel if they considered that it cast doubt on the scores awarded by the evaluation process. The Claimants complain that none of this appears to have been the subject of a formal minute or note and that no guidance seems to have been given to the deputed officials as to the sort of information that should be taken into account.
  10. The information obtained was forwarded to Mr. Wallace and Mr. McKay. In the Defendant’s Grounds, verified by Mr. McKay, the information is summarised as being seen by the recipients as inconclusive. It is said,  

    i) that the external references received in respect of the Interested Party were satisfactory in one case and good in the other two;ii) that similar references in respect of the Claimants were poor in one case and good in the other two;

    iii) that the information from North and South Wales and Gwent about the Claimants was “positive”, but there was no basis to compare the details between the Claimants and the Interested Party; and

    iv) that the view of Mr. Harding’s colleagues on the Regional Enforcement Forum was in favour of wishing the Claimants to continue with their existing work, this was on the basis that it would be “the least painful” in terms of transition to the new contract system.

  11. Mr. Garland, the managing director of the First Claimant, disputes the contention by the Defendant that the statistical information relating to North and South Wales, where the Claimants and the Interested Party respectively were primary contractors, could not be properly compared. It is his evidence that that information indicated that the Claimants’ collection rate was far better than that of the Interested Party. He also states that the one poor reference received in respect of his company related to work where it was given only small repeat account council tax enforcement and the high quality work was going to other contractors.
  12. It should be noted here that, although the Interested Party has not been represented before me, it has filed a witness statement of Mr. Huw Lloyd-Lewis, its managing director, taking issue with some of the information obtained at this stage of the process in so far as it is adverse to his company’s bid.
  13. The Claimants submit that the statistical material from the North Wales Area provided examples of the Claimants’ good practice. It is said that the South Wales, where both bidders operated, the report suggested that the relevant Claimant was providing a substantially better service that the Interested Party. It is pointed out that Mr. Harding added that those on the Regional Enforcement Forum to whom he had spoken all wished the Claimants to continue; he had added that, “in terms of transition this would be the least painful”. It is submitted by the Claimants that the Defendant, through Mr. Wallace and Mr. McKay, saw this as being a preference in favour of the Claimants only as a means of avoiding transitional problems. The Defendant says that “transitional” issues did not reflect any of the contract award criteria.
  14. After this further gathering of information, the Panel made its report to the Board. It appears that Mr. Wallace and Mr. McKay did not consider that the additional information received required any revisions to the scores arising out of the evaluation procedure. The information from sources within the Region was not placed before the full Panel and is not referred to in its report. The results of telephone references from external referees were presented in summary form as follows:

    “-Telephone references were obtained in respect of both companies and the results were very similar in that they:

    -Both had consistently good performance and were responsive in dealing with issues

    -In general the contract management was not as formal as we are proposing, as the contracts were smaller, however the systems were effective

    -There was therefore no reason to change the scores for either company.”

    The recommendation to the Board was that it should consider both the Interested Party and the Claimants for the contract for this Region.

  15. The Defendant’s evidence is, through Mr. McKay, that Mr. Matthews, the Region’s representative on the Board, had been briefed at each stage of the process by Mr. Harding and had been aware of the views emanating from some parts of the Region in response to Mr. Harding’s post-evaluation enquiries. It is said that Mr. Matthews also felt that the new information did not show that the evaluation scores were incorrect.
  16. On 19 December 2005 the Board met to consider the evaluation report and to make decisions on the tenders received. So far as this Region is concerned the relevant passages of the record of that meeting read as follows:

    “…

    4.1 In respect of the contract award for Wales and Cheshire IW [i.e. Mr. Wallace] informed the Board that the evaluation scores were close between [the Interested Party] and [the Claimants]. References had been sought but were inconclusive and had not affected the evaluation score.

    4.2 LP [Mrs. Pyne] advised the Board that, unless there was any further relevant information to evaluate either company to the published criteria, the company with the highest score should be awarded the contract.

    4.3 HM [Mr. Matthews] informed the Board that the Region was comfortable with the decision reached by the evaluation panel and would accept the contract being awarded to [the Interested Party].”

  17. It is then recorded that the Board decided to award the contract for this Region to the Interested Party. In respect of the North Eastern Region it was decided to postpone the decision until after a site visit had been carried out to the premises of one of the relevant contractors.
  18. In its grounds the Defendant now takes the view that the decision made by the Panel to seek “subjective” views about the tenderers after evaluation from local managers and external referees was a departure from good practice. It now considers that this course of action ran counter to the tender process on which the Panel and the Board had agreed, which was designed to promote objectivity and to exclude subjective evaluations of the competing tenderers. However, the Defendant contends that the Panel correctly had in mind that it was only matters which might affect objective marking that could be relevant to its decision. (C) Main Heads of Argument
  19. The submission by the Claimant is that this history reveals that the Board took its decision to award the contract to the Interested Party on a false basis. It is said that in public law terms the Defendant failed to take account of relevant information before reaching its decision, or made its decision on the basis of a material mistake of fact or by way of a procedure flawed by unfairness.
  20. The complaints break down into three principal categories:  

    i) The report to the Board was misleading by omission in that it failed to deal with the concerns of local managers.ii) Mr. Matthews’ statement to the Board that the Region was “comfortable” with the Panel’s conclusions was false in the light of the opposition expressed by two Areas, viz. North and South Wales, and the views of Dyfed Powys had not been sought.

    iii) Relevant statistical evidence from the local areas had not been provided to the Board to enable it to draw proper comparisons between the merits of the two bids.

    It is said that the Board was given an impression that did not match the reality. Other subsidiary points are made by the Claimants in support of these primary submissions and I do not leave them out of account in summarising the main points as I do above.

  21. In answer, the Defendant submits that, on the facts, it endeavoured to follow its well settled written procedure for evaluation of procurement, a procedure which is unimpeachable. This procedure defined the respective roles of the Board and the Panel and includes a passage about the role of the “evaluation moderator” (in this case Mr. McKay), in the following terms:

    “3. In this model, the Project Board has overall responsibility for the procurement exercise, with membership defined accordingly. They will agree the procedures to be completed and the evaluation criteria for both pre-qualification and tenders. They will not be expected to commit significant time to carry out detailed evaluation and attend presentations, instead they will take the decisions (based on reports), regarding the companies to be invited to tender and on contract award. They would be expected to attend three meetings, and comment on/ approve a number of documents outside thjese meetings.

    4. The tender evaluation team carries out the direct evaluation activities. Team members may be from different sections of the business (selected for their relevant technical, commercial, or other skills) or from a particular Region. The Regional members will be responsible for the parts of the project and in particular to carry out detailed evaluation of all tenders and carry out the presentations. The estimated time commitment is nine days plus attending three meetings (some of the meetings could be by video conference).

    5. The evaluation moderator is the manager of the evaluation team, and has the responsibility of ensuring that evaluation activities are performed fairly and objectively. He or she should not carry out any particular part of the evaluation, but may act as a sounding board if required by individual team members, in the performance of their own parts of the evaluation.”

    The Defendant emphasises the supervisory role of the Board and the detailed evaluation task of the Panel and the moderator. It is argued that the process allowed for the obtaining of performance material from the tenderers in answers to questions posed in the tender documentation and that there was no obligation upon it to have obtained more information about this or any other matter. It is pointed out that no provision was made in the process for further internal or external inquiries because to have done so would have discriminated against tenderers who did not or had not recently performed contracts with HMCS. It is submitted that this procedure, as so designed, could not conceivably be classed as irrational.

  22. Mr. Coppel for the Defendant submitted that the exercise of getting the extra material from outside referees and local managers after the evaluation process was undesirable and to have put it before the Board would have compounded the error. As it was, the deputed members of the Panel considered the information and decided that the information did not affect the marks; the Board received a report accordingly. Mr. Coppel argues that, therefore, the integrity of the tender process was maintained. Thus, the Board did take its decision upon relevant material and was not misled in any relevant respect.
  23. Further, the Defendant argues that the Claimants’ challenge to the decision in these proceedings is misconceived as this decision is not one that is properly susceptible to judicial review at all. In my view, analysis of the Claimants’ challenge on the facts and on this fundamental legal basis is not easily separable. (D) Availability of Judicial Review and the main public law challenge
  24. It has, of course, been of particular interest in this case that contracts made or proposed to be made in one case by the Lord Chancellor’s Department and in another by the Legal Aid Board have been the subject of applications for judicial review in two cases in which amenability of the relevant decision to judicial review has been considered. The cases are R v Lord Chancellor’s Department, ex p. Hibbit and Sanders 11.3.93 (Divisional Court, Rose LJ and Waller J) and R v Legal Aid Board, ex p. Donn & Co. [1994] 3 All ER 1 (Ognall J). I shall refer to these cases as Hibbit and Donn respectively. However, I think it is first useful to refer to a decision of the Privy Council which considered decisions by state enterprises to enter into or determine contracts for the supply of goods or services and the availability of judicial review in that context. That case is Mercury Energy Ltd. v Electricity Corporation of New Zealand [1994] 1 WLR 521. (“Mercury”)
  25. In Mercury the Privy Council was concerned with the decision by the respondent electricity board to terminate a supply contract with the appellant. The respondent was a state enterprise constituted under statute and registered under the New Zealand Companies Act, all its shares being held by government ministers. Its objectives were laid down in the State-Owned Enterprises Act 1986. The respondent determined its contract of supply with the appellant. The appellant then brought proceedings alleging breach of contract, breach of statutory duty under the 1986 Act and abuse of dominant position. It also brought a claim under the Judicature Amendment Act 1972 for judicial review. The relevant section provided,

    “(1) On an application…which may be called an application for review, the High Court may…grant, in relation to the exercise, refusal to exercise, or proposed or purported exercise by any person of a statutory power, any relief that the applicant would be entitled to, in any one or more of proceedings for a writ or order of or in the nature of mandamus, prohibition, or certiorari or for a declaration or injunction, against that person in any proceedings.”

  26. It was submitted for the respondent in that case, on an application to strike out the non-contractual claims, that its decision to determine the contractual arrangements was not in relation to the exercise of a statutory power within the 1972 Act. The judge struck out the claims relating to statutory duty and abuse of dominant position but left the judicial review claim under the Act to continue. The Court of Appeal dismissed the appellant’s appeal, allowed the respondent’s cross appeal and struck out the judicial review claim. Before the Privy Council it was conceded that the common law power to grant judicial review survived the enactment of the statutory review provided for by the 1972 Act. The Privy Council held that the respondent’s decisions were amenable to review under the statute and at common law but dismissed the appeal on the facts. In delivering the judgment of the Board, Lord Templeman said,

    “A state enterprise is a public body; its shares are held by ministers who are responsible to the House of Representatives and accountable to the electorate. The defendant carries on its business in the interests of the public. Decisions made by the defendant, a body established by statute, may adversely affect the rights and liabilities of private individuals, without affording them any redress. Their Lordships take the view that in these circumstances the decisions of the defendant are amenable in principle to judicial review both under the Act of 1972 and at common law.

    It does not follow that the plaintiff is entitled to proceed with its claim for judicial review in the present case. Judicial review involves interference by the court with a decision made by a person or body empowered by Parliament or the governing law to reach that decision in the public interest. A litigant may only invoke interference by the court with such a decision if the litigant pleads plausible allegations which…will demonstrate that the decision was not reached in accordance with law.”

  27. After citing the well-known passage from the judgment of Lord Greeene MR in Associated Provincial Picture Houses v Wednesbury Corporation [1948] KB 223, 228-230, Lord Templeman said, in a passage much relied upon by the Defendant here,

    “It does not seem likely that a decision by a state enterprise to enter into or determine a commercial contract to supply goods or services will ever be the subject of judicial review in the absence of fraud, corruption or bad faith.”

  28. Hibbit was an application for judicial review by an unsuccessful tenderer in respect of a decision by the Lord Chancellor’s Department to award a contract for the reporting of court proceedings to the successful bidder. The application was based upon an alleged breach of legitimate expectation that the Defendant would not, by post tender discussions, invite some tenderers and not others to submit revised bids. The Court held that the applicants had been unfairly treated but that the decision was not amenable to judicial review. It was held that the decision lacked a sufficient public law element and that it was not a sufficient basis of claim that the Department was a public body carrying out governmental functions and appointing persons to a public office. A public body was free to negotiate contracts and something additional was necessary over and above the fact that the negotiator was a public body to impose on that body a public law obligation. Citing R v Derbyshire CC, Ex p. Noble [1990] ICR 808 at p. 819, Rose LJ noted that the test to be applied is to look at the subject matter of the decision which it is suggested should be the subject of judicial review and by looking at that subject- matter to come to a decision as to whether judicial review is appropriate. In applying that test the learned Lord Justice found that neither the statutory requirement for the appointment of shorthand writers nor the importance of their functions provided a framework for the appointment of persons to perform those functions. Further, while the fact that a commercial function was being performed did not take the case out of the ambit of public law, it was not appropriate to equate tendering conditions, attendant on a common law right to contract, with a statement of practice or policy in a public sphere which is in the especial province of the State and where, in consequence, a sufficient public law element is apparent.
  29. Waller J (as he then was) agreed and said,

    “…it is critical to identify the decision and the nature of the attack on it. Unless there is a public law element in the decision, and unless the allegation involves suggested breaches of duties or obligations owed as a matter of public law, the decision will not be reviewable.”

    A little later he said,

    “It is not sufficient in order to create a public law obligation simply to say that the Lord Chancellor’s Department is a governmental body carrying out governmental functions and appointing persons to public office.”

    On the subject of contractual negotiations Waller J added,

    “A governmental body is free to negotiate contracts, and it would need something additional to the simple fact that the governmental body was negotiating the contract to impose on that authority any public law obligation in addition to any private law obligations or duties there might be.”

  30. Turning to “statutory underpinning” as a foundation for judicial review, Waller J said,

    “If the government body has a statutory obligation to negotiate as contract in a particular way, with particular terms, and fails to perform that statutory obligation, one immediately has the additional public law obligation…

    The point, however, is that to have a right which can then be the subject of review that right must flow from the statute if it is to a statute that one has had to look for providing the public law element. It is not enough to say that the governmental authority is acting by reference to certain statutory provisions without the additional factor that it is those statutes which impose the obligation which is said to have been broken.”

  31. In concluding that judicial review did not lie in that case, Waller J identified four features, three of which are material in the present context:  

    i) Even allowing for a distinction between a government department and an ordinary businessman in approach to tendering it did not alter the nature of the tendering process.ii) There is a possible distinction between a government department’s aim in carrying out a tender procedure as compared with a commercial organisation, but the complaints were not directed to aim but at the failure to carry out the procedure.

    iii) “The fact that the decision sought to be reviewed is the placing of a contract with a particular firm seems to me to add force to the contention that there is unlikely to be any public law element in that decision.”

  32. Donn was a case in which a decision of the Legal Aid Board was challenged. The decision was one for the award of a contract to represent generic plaintiffs in a multi-party action. The claim was that the Committee charged with making the decision had acted incorrectly in failing to reconvene and reconsider its decision to award the contract to another firm when it was appreciated that an important part of the plaintiff’s tender had been omitted from the papers at the time when the original decision was taken. Secondly, the plaintiff complained that a potential conflict of interest within the plaintiif’s tender had been too hastily dealt with. It was submitted by the defendant that the decision under challenge was not amenable to judicial review since there was an insufficient public law element in the case to found the claim.
  33. Ognall J rejected that submission. He considered Hibbit and applied the test of looking at the subject matter of the decision: see Hibbit and R v Derbyshire CC (supra). He remarked,

    “I confess that I have not found the answering of this question an easy one. To a degree the exhortation to which I have referred to look at “the subject matter” itself raises a question not free from difficulty. “

    With that remark I find myself in considerable sympathy.

  34. The judge found that he preferred the submissions of the applicants to those of the respondents on the point. The submissions so preferred (of Mr. Alan Moses QC, as he then was) were these:

    “1. The board in exercising this function through their committee are considering the allocation of very large sums of public money.

    2. On behalf of litigants who could not otherwise afford to seek compensation to which, under the law, they might legitimately be entitled.

    3. That the public importance of making the right choice is obvious. It is in the interests of the plaintiffs and of the defendants and of the court, and hence the public as a whole, that the solicitors chosen should be the ones best fitted to use public funds in the most effective way in the pursuit of their clients cause.

    4. That it should be noted that the board is the sole and final arbiter of selection….

    …It is submitted that there is here a “vital public interest” in the procedurally regular and fair conduct of the selection process within the aegis of public law.”

    See [1996] 3 All ER at pp. 10j to 11f.

  35. On this aspect of the case, Mr. Giffin QC for the Claimants submitted that when one looks at the subject-matter of the decision it was a decision to award a contract for enforcement services in respect of court orders; it was classically a decision relating to the identity of persons engaged to exercise coercive powers of the state. Mr. Coppel submitted that the importance of the function to be performed is not the test; he referred in this regard to McClaren v Home Office [1990] ICR 824, a case concerning the engagement of a prison officer, and the other cases cited by Mr. Richards (as he then was) appearing for the defendant in Hibbit at pp. 15F to 16C. In so far as Ognall J reached his decision based upon the importance of the functions to be performed under the contract in issue in Donn, submitted Mr. Coppel, he was wrong to do so.
  36. Mr. Coppel relied strongly upon the decision of the Court of Appeal in Mass Energy Ltd. v Birmingham City Council [1994] Env. LR 298, a case concerning tenders for a waste disposal contract and which was described by Buxton LJ in a later case as “the most convenient source” of domestic public law on contracting processes: see R (on the application of Cookson & Clegg Ltd.) v Ministry of Defence [2005] EWCA Civ. 811, paragraph 18. The Mass Energy case concerned the tender arrangements for waste contracts under the Environmental Protection Act 1990. The applicant for judicial review contended that the tender from the rival bidder did not comply with the tender specifications and that subsequent negotiations with the rival bidder after the tender process was complete rendered the bidding process invalid. The application for leave to move for judicial review was refused by the judge and by the Court of Appeal. However, it was only on the appeal that the question of amenability of the case to judicial view was raised, and then only on the Court’s initiative: see p. 306 per Glidewell LJ. The learned Lord Justice continued:

    “On its face, this is really a commercial dispute between a successful and an unsuccessful tenderer; a situation which is not, of course, at all uncommon. If there were no statutory requirement that the city council should enter into a contract for its waste disposal operations, and particularly the construction of the incinerator to be the subject of a contract entered into by tender, but if the council had sought voluntarily to enter into a contract by tender deciding to adopt that process of its own volition, then in my view there would be no public law element in such a dispute at all. Mass Energy could then only hope to bring an action against the council on some contractual basis, for instance if they could persuade a court that there was some sort of implied term which entitled them to recover the wasted cost of tendering….

    …I accept that because the statutory powers of the council not to contract by means other than those described in Part II of Schedule 2 of the Act, there is a public law element in this dispute to this extent (but only to this extent): that it is a proper subject for judicial review to consider whether the council have complied with Section 51(1) and entered into a contract as a result of following the procedure laid down in Schedule 2, Part II of the Act. In my judgment, judicial review has no further place in my judgment in this dispute.”

    I was referred to passages to similar effect in the judgments of Scott and Evans LJJ at pp. 313-4 and 315-6.

  37. After quoting part of the passage from the judgment of Glidewell LJ, cited above, Buxton LJ in the Cookson & Clegg case said this:

    “This analysis makes a distinction between statutory fault in not following statutory rules…on the one hand; and actions of what might be called a normal commercial nature in awarding the contract itself. I would, however, immediately agree that that analysis does not and should not exclude public law entirely from the contract-awarding process, even if there were no statutory breaches involved: for instance if there were bribery, corruption or the implementation of a policy unlawful in itself, either because it was ultra vires or for other reasons…”

  38. Mr. Giffin QC for the Claimants submitted that both the Mass Energy and Cookson & Clegg cases were appeals in cases of refusals of renewed applications for permission to apply for judicial review and were, therefore, not binding on this court. Among other submissions about the two cases, he invited particular note that the examples of availability of judicial review in a public tender context were just that, examples. He submitted that it was clear from both cases that judicial review has its place in this context. I note, however, that the examples bear a striking resemblance to those given by Lord Templeman in the Mercury in the Privy Council, cited above.
  39. I believe that the examples given above give a sufficient indication of the exercise to be conducted by a court in deciding the limits of judicial review in this field. I intend no disrespect to the arguments of Counsel in refraining from citation of only a few of the other cases which are in essence merely further examples of decisions on different facts which were placed before me. In proceeding to my own analysis of this case I have reconsidered those cases and in particular R v Walsall CC, ex p. Yapp (1993) 92 LGR 110 and R (Molinaro) v Kensington & Chelsea RLBC [2002] LGR 336. From the latter case, Mr. Giffin relied in particular upon the statement of Elias J at paragraph 65 of the judgment as follows:

    “In my view, the fact that a local authority is exercising a statutory function ought to be sufficient to justify the decision itself being subject to judicial review if its alleged that the power has been abused…”.

  40. It is to be noted immediately the limit to the statement of Elias J above, namely, “…if it is alleged that the power is being abused”. In the same case Elias J also said,

    “If there had been conspicuous unfairness… the court should not stand idly by and tell the claimant that because a private individual could exercise his contractual discretions arbitrarily, or unfairly, the public body could do likewise”.

    This approach accords, at least in part, with the approach of Waller J in Hibbit (supra):

    “The fact that a body is exercising a statutory power will entitle the court to consider whether there must be implied an obligation, for example, to act fairly,…

    The point, however, is that to have a right which can be the subject of review that right must flow from the statute if it is to the statute that one must look for providing a public law element. It is not enough to say simply that the governmental authority is acting by reference to certain statutory provisions without the additional factor that it is those statutes which impose the obligation which is said to have been broken.”

  41. It is sufficient for present purposes to refer again to the last passage cited to see that the fact that the Defendant here proposes to exercise the power to contract conferred by Section 2(4) of the 2003 Act does not confer the necessary public element to subject the decision criticised in this case to judicial review. Again, Waller J’s analysis is helpful in the present context pointing out that it is critical to identify the decision and the nature of the attack on it; unless there is a public law element in the decision, and unless the obligation involves suggested breaches of duties or obligations owed as a matter of public law, the decision will not be reviewable: see p. 18D-F.
  42. The Mercury Energy and Cookson & Clegg cases identify the classic areas in which judicial review will be available in the context of the commercial activities of public bodies, namely cases of fraud, corruption, bad faith etc. Of course, as Mr. Giffin submits, these are examples. However, can the Claimants here establish that the obligation said to have been owed by the Defendant involves suggested breaches of duties or obligations owed as a matter of public law? That depends upon an analysis of the criticism made and the facts upon which it is based. The material criticisms have been set out above: a failure to provide material information to the Board and then giving to the Board an inaccurate view of the facts.
  43. The material information is said to be the reservations of certain local managers as to the past performance of the rival bidders and the statistics upon which the reservations were based, together with Mr. Matthews’ statement to the Board on 19 December 2005, the date of the decision, that the Region was “comfortable” with the decision reached by the evaluation panel and would accept the contract being awarded to the Interested Party.
  44. In my judgment, all that could be said of the absence of information is that the Panel at one time thought that additional information beyond the tender evaluation process might have informed their decision. On obtaining the material the deputed members of the Panel decided that that information did not alter their view of the scores awarded in the evaluation process and were, therefore, immaterial for the Board’s consideration. That was a view that the relevant Panel members were entitled to take within the remit given to the Panel as a whole to conduct a tender evaluation in accord with the set criteria. How the Defendant decided to evaluate the tenders was a matter for it within the objective criteria that it set for itself. The fact that it obtained and rejected as unhelpful certain information from within its own organisation does not amount to a breach of any obligation, let alone a public law obligation, owed to the Claimants.
  45. As for an inaccurate view of the facts, I consider that it is a misapprehension of the nature of HMCS to say that Mr. Matthews’ statement was inaccurate. He was the representative of the Regional Director on the Board. For these purposes, he was the Region. There are, day in and day out, matters relating to the affairs of HMCS regions upon which Area Managers (the next tier below the Director), court managers and other officials will have many and variant views. It is for the Regional Director or his or her relevant representative to represent and to take decisions where necessary on behalf of a region. In some cases, a Regional Director may find that many of his inferiors in the regional hierarchy take a particular view, but when reviewing the matter as a whole the Regional Director takes a different view and reports his or her concluded view as being that of the region concerned. It is fanciful to suggest either that such a report is “inaccurate”, still less that a decision taken on the basis of such a report is amenable to judicial review.
  46. In this case, Mr. Matthews was briefed at all stages and was entitled to state “the Region’s” view in the light of all the information in his possession and in the light of the tender process, the tender criteria and the reports from the Panel members as a whole.
  47. Having regard to the authorities so helpfully cited to me by both counsel, I would resolve the principal challenge to the decision in the Defendant’s favour both on the facts and on the law for the reasons given. In my view, for the reasons advanced by Mr. Coppel, the Board did have before it the material information required for it to take its decision and Mr. Matthews’ statement on behalf of the Region was not inaccurate. Further, the tender evaluation process was an essentially commercial process, notwithstanding the nature of the services which are to be the subject of the contract. The manner in which the Defendant chose to inform itself as to the merits of the tenders was designed to be as objective as possible. It is not every wandering from the precise paths of best practice that lends fuel to a claim for judicial review. It is, I think, for this reason that the examples given of cases where commercial processes such as these are likely to be subject to review are such as they are in the reported cases, namely bribery, corruption, implementation of unlawful policy and the like. In such cases, there is a true public law element. Here, as in Hibbit, the fact that the decision sought to be reviewed is the placing of a contract with one bidder as opposed to another adds force to the contention that there is no relevant public law obligation in issue: see per Waller J at p. 26.
  48. There was in the written grounds on each side an argument based upon the role of the law of the European Union in this field. It was accepted by Mr. Giffin at the hearing that the specific EU rules relied upon in those papers were not in play in this case. Therefore, the detailed arguments on those rules were not further argued before me. However, by reference to paragraph 41 (and following paragraphs) of his written argument, Mr. Giffin argued that the public law/private law picture has been changed by the extent to which EU law is in play. A high proportion of public contracts are now subject to regulatory or general obligations of transparency, non-discrimination and equal treatment, which are closely allied to public law principles in this country. It is argued, therefore, that it would be anomalous where such rules are in play even outside the strict EU regulatory regime itself, for a decision such as that in issue here to be treated like a purely private decision of a private individual or a private corporation. This added emphasis, Mr. Giffin submitted, to the view that the present decision was susceptible to judicial review.
  49. I think that I have said enough above to show that the activities of public bodies in this area are indeed subject to the scrutiny of public law in appropriate cases. The EU law adds a dimension to that. However, that is in my judgment not sufficient to subject public bodies to a quasi-regulatory scrutiny of the type that this submission seems to envisage. In my view, the argument by analogy to, rather than by application of EU law adds nothing to the arguments in this case. (E) The secondary public law challenge: marking
  50. As a subsidiary point, the Claimants have mounted a challenge to the Defendant’s decision on the basis that the Defendant’s evaluation processes produced the “wrong” scores in respect of the Claimants’ bid. No oral argument was presented on this point since the parties, in their desire to obtain expedition of the hearing, estimated the time required at 1 ½ days. That time was fully consumed in arguing the points considered above. In the circumstances, it was left that I should consider that basis of challenge on the papers. I have done that.
  51. In the end, I agree entirely with the Defendant’s submission that it is inappropriate for this court to re-mark the tenders in the way sought by the Claimants. It does not have the material or expertise in this context to “second guess” the judgment of the Panel. Furthermore, this process is even more clearly in the realm of commercial judgment for the Defendant, which judgment cannot properly be the subject of public law challenge on the grounds advanced in the evidence before me. (E) Conclusion
  52. For these reasons, this application for judicial review fails.

Leave a Reply

debug