AAEW Europe LLP & Ors v Basingstoke And Deane Borough Council [2019] EWHC 2050 (TCC) (26 July 2019)

AAEW Europe LLP & Ors v Basingstoke And Deane Borough Council [2019] EWHC 2050 (TCC) (26 July 2019)

The existence of a valid OJEU notice that objectively relates to the contract awarded precludes the remedy of a declaration of ineffectiveness, even if the contract is materially varied from the notice and would have required a fresh process. The test is mechanistic and focuses on whether a notice was published, not...

Source-derived case information.

Citation
[2019] EWHC 2050 (TCC)
Parties
Claimant: AEW Europe LLP; Claimant: Trustee 1 FB Limited; Claimant: Trustee 2 FB Limited; Defendant: Basingstoke and Deane Borough Council; Interested Party: NewRiver Leisure Limited
Jurisdiction
England and Wales
Judgment Date
26 July 2019
Procedural Posture
Public Procurement Claim / Preliminary Issue Determination
Outcome
Preliminary issue decided in favour of the Defendant and Interested Party; declaration of ineffectiveness not available to Claimants.
Legal Topics
Declaration of Ineffectiveness, Material Variation of Contract, OJEU Notice, Public Contracts Regulations 2015, Remedies for Breach of Procurement Law
Public Procurement Administrative Law Declaration of Ineffectiveness Material Variation of Contract OJEU Notice Public Contracts Regulations 2015 Remedies for Breach of Procurement Law

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Parties

AEW Europe LLP

Claimant

Trustee 1 FB Limited

Claimant

Trustee 2 FB Limited

Claimant

Basingstoke and Deane Borough Council

Defendant

NewRiver Leisure Limited

Interested Party

Procedural Posture

Public Procurement Claim / Preliminary Issue Determination

Legal Issues

  1. 1 Whether a declaration of ineffectiveness is available where a contract, though advertised and subject to a competitive tender process, is materially varied from the original OJEU notice and would have required a fresh process under the Public Contracts Regulations

Ratio Decidendi

The existence of a valid OJEU notice that objectively relates to the contract awarded precludes the remedy of a declaration of ineffectiveness, even if the contract is materially varied from the notice and would have required a fresh process. The test is mechanistic and focuses on whether a notice was published, not on the degree of variation. The remedy is unavailable to the Claimants in these circumstances.

Court Disposition

Preliminary issue decided in favour of the Defendant and Interested Party; declaration of ineffectiveness not available to Claimants.