Sidey Ltd v. Clackmannanshire Council & Anor [2010] ScotCS CSIH_37 (05 March 2010)

Sidey Ltd v. Clackmannanshire Council & Anor [2010] ScotCS CSIH_37 (05 March 2010)

A commercial action is fundamentally incompetent for challenging a below-threshold public procurement decision in Scotland. Remedies under the Public Contracts (Scotland) Regulations 2006 and the relevant EU Directives are not available for below-threshold contracts, even if the authority voluntarily follows those procedures. Any challenge must be brought by petition for judicial review, relying on domestic administrative law principles.

Citation
[2010] ScotCS CSIH_37
Parties
Pursuers and Respondents: Sidey Limited; First Defenders: Clackmannanshire Council; Second Defenders and Reclaimers: Pyramid Joinery and Construction Limited
Jurisdiction
Scotland
Judgment Date
05 March 2010
Procedural Posture
Commercial Action (reclaiming Motion) / Appeal (reclaiming Motion) Before the Inner House, Court of Session
Outcome
Reclaiming motion allowed; action dismissed as fundamentally incompetent.
Legal Topics
Below Threshold Public Contracts, Remedies for Breach of Procurement Rules, Judicial Review, Competency of Procedure, Community Law Principles
Public Procurement Administrative Law European Union Law Below Threshold Public Contracts Remedies for Breach of Procurement Rules Judicial Review Competency of Procedure Community Law Principles

Case Brief

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Parties

Sidey Limited

Pursuers and Respondents

Clackmannanshire Council

First Defenders

Pyramid Joinery and Construction Limited

Second Defenders and Reclaimers

Procedural Posture

Commercial Action (reclaiming Motion) / Appeal (reclaiming Motion) Before the Inner House, Court of Session

Legal Issues

  1. 1 Whether remedies under the Public Contracts (Scotland) Regulations 2006 and the relevant EU Directive are available in relation to a below-threshold public procurement contract
  2. 2 Whether a commercial action is a competent procedure for challenging a below-threshold procurement decision, or whether judicial review is required
  3. 3 Whether Community law principles are engaged in below-threshold contracts and what remedies are available

Ratio Decidendi

A commercial action is fundamentally incompetent for challenging a below-threshold public procurement decision in Scotland. Remedies under the Public Contracts (Scotland) Regulations 2006 and the relevant EU Directives are not available for below-threshold contracts, even if the authority voluntarily follows those procedures. Any challenge must be brought by petition for judicial review, relying on domestic administrative law principles.

Court Disposition

Reclaiming motion allowed; action dismissed as fundamentally incompetent.

Orders

  • Dismissal of the commercial action as incompetent.