Energy Solutions EU Ltd v Nuclear Decommissioning Authority

Energy Solutions EU Ltd v Nuclear Decommissioning Authority

A failure to award a contract to the tenderer whose tender ought to have been assessed as the most economically advantageous offer is, in itself, a sufficiently serious breach to warrant an award of damages under the second Francovich condition. Breaches of Threshold Requirements or Pass/Fail obligations are...

Source-derived case information.

Parties
Claimant: Energy Solutions EU Limited; Defendant: Nuclear Decommissioning Authority
Jurisdiction
England and Wales
Judgment Date
20 December 2016
Procedural Posture
Private Law Claim for Breach of Statutory Duty (procurement) / Judgment on Application of the Second Francovich Condition (sufficiently Serious Breach)
Outcome
Findings on seriousness of breach for damages under Francovich condition; no final damages award (pending Supreme Court appeal and assessment).
Legal Topics
Francovich Conditions, Damages for Breach of Procurement Regulations, Sufficiently Serious Breach, Award of Public Contracts, Equal Treatment and Transparency in Procurement
Public Procurement European Union Law Statutory Duty Francovich Conditions Damages for Breach of Procurement Regulations Sufficiently Serious Breach Award of Public Contracts Equal Treatment and Transparency in Procurement

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Parties

Energy Solutions EU Limited

Claimant

Nuclear Decommissioning Authority

Defendant

Procedural Posture

Private Law Claim for Breach of Statutory Duty (procurement) / Judgment on Application of the Second Francovich Condition (sufficiently Serious Breach)

Legal Issues

  1. 1 Whether failure to award a contract to the most economically advantageous tenderer is a sufficiently serious breach to warrant damages under the Francovich conditions
  2. 2 Whether individual or cumulative breaches by the NDA are sufficiently serious to warrant damages if the Supreme Court holds the Francovich conditions apply

Ratio Decidendi

A failure to award a contract to the tenderer whose tender ought to have been assessed as the most economically advantageous offer is, in itself, a sufficiently serious breach to warrant an award of damages under the second Francovich condition. Breaches of Threshold Requirements or Pass/Fail obligations are individually sufficiently serious; other breaches are sufficiently serious if they would have affected the outcome of the competition.

Court Disposition

Findings on seriousness of breach for damages under Francovich condition; no final damages award (pending Supreme Court appeal and assessment).

Orders

  • The failure to award the contract to the most economically advantageous tenderer is a sufficiently serious breach to warrant damages if the Francovich condition applies.
  • Individual breaches of Threshold Requirements or Pass/Fail obligations are sufficiently serious; other breaches are sufficiently serious if they would have affected the competition outcome.