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Scottish court ruling could influence European cross-border tendering

Friday December 16th, 2011

A major Court of Session ruling has emerged in Scotland which could influence the level of burden on procuring bodies to meet prescriptive European guidelines on tendering involving low-value regional contracts.

Senior judge Lord Brailsford issued a judgment in on a public procurement case raised against Clackmannanshire Council by property refurbishment firm Sidey Ltd.

The action was raised following the award of a contract to a rival firm after a competitive tender. Sidey sought a ruling that the local authority had failed to follow its procurement evaluation guidelines correctly, along with damages.

Roddy Cormack, associate at Ledingham Chalmers LLP, which acted for Clackmannanshire Council, said: “While Lord Brailsford agreed that the local authority had not followed its own procedures – a fact which it had itself already admitted – it looks unlikely given the terms of the judgement that Sidey will be entitled to damages.

 “European legislative provisions have previously laid down relatively strict rules for the process through which procurements must be carried out, over certain contract value thresholds.”

On cross-border interest Mr Cormack said: “Recent decisions from the continent mean key principles of European law will generally apply to procurements when the contract involved is of cross-border interest.”

‘Cross-border interest’ means that the contract is of a scale where businesses from the wider UK, or even overseas, may wish to pursue the work. There has been little guidance as to what exactly this constitutes.

The key issue arising from the case is that it would appear a judge can give weight to the fact that something didn’t occur to an officer, as opposed to giving weight to the opinion of an officer who had given the issue further thought. Arguably this means that a council can rely on possible oversight rather than making a deliberate choice.

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