Gottlieb, R (On the Application Of) v Winchester City Council

Gottlieb, R (On the Application Of) v Winchester City Council

The variations to the Development Agreement were materially different in character from the original contract, increased the economic benefit to the developer, removed unprofitable obligations, and would have attracted other realistic bidders if advertised; the Council's decision to authorise these variations without a procurement process was unlawful under Directive 2004/18/EC and the Public Contracts Regulations 2006.

Parties
Claimant: Kim Alexander Gottlieb; Defendant: Winchester City Council; Interested Party: Silverhill Winchester No 1 Limited
Jurisdiction
England and Wales
Judgment Date
11 February 2015
Procedural Posture
Judicial Review / Judgment After Full Hearing
Outcome
Claim allowed; decision quashed
Legal Topics
Variation of Public Contracts, Procurement Procedures, Standing in Judicial Review, Material Change in Contracts, EU Procurement Directives
Public Procurement Administrative Law Local Government Law Variation of Public Contracts Procurement Procedures Standing in Judicial Review Material Change in Contracts EU Procurement Directives

Case Brief

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Parties

Kim Alexander Gottlieb

Claimant

Winchester City Council

Defendant

Silverhill Winchester No 1 Limited

Interested Party

Procedural Posture

Judicial Review / Judgment After Full Hearing

Legal Issues

  1. 1 Whether variations to the Development Agreement required a new procurement process under Directive 2004/18/EC and the Public Contracts Regulations 2006
  2. 2 Whether the variations were materially different in character from the original contract
  3. 3 Whether the Council's decision was unlawful for failure to conduct a procurement exercise

Ratio Decidendi

The variations to the Development Agreement were materially different in character from the original contract, increased the economic benefit to the developer, removed unprofitable obligations, and would have attracted other realistic bidders if advertised; the Council's decision to authorise these variations without a procurement process was unlawful under Directive 2004/18/EC and the Public Contracts Regulations 2006.

Court Disposition

Claim allowed; decision quashed

Orders

  • The Council's decision to authorise variations to the Development Agreement without a procurement process is quashed.