Elekta Ltd v The Common Services Agency [2011] ScotCS CSOH_107 (21 June 2011)

Elekta Ltd v The Common Services Agency [2011] ScotCS CSOH_107 (21 June 2011)

The requirement for compatibility with the existing Varian ARIA RMS and the stipulation of a single provider were objectively justifiable based on the operational needs of the health boards. The criteria did not breach the principles of equal treatment or non-discrimination, even if only one supplier could meet them. The pursuer's challenge had no reasonable prospect of success, and the balance of convenience and public interest favored granting the order to lift the standstill period.

Citation
[2011] ScotCS CSOH_107
Parties
Pursuer: Elekta Limited; Defender: The Common Services Agency
Jurisdiction
Scotland
Judgment Date
21 June 2011
Procedural Posture
Judicial Review / Procurement Challenge / Interim Order Application Under Regulation 47(10) of the Public Contracts (scotland) Regulations 2006
Outcome
Order granted in favor of the defender; standstill period lifted.
Legal Topics
Non Discrimination in Procurement, Objective Justification of Award Criteria, Compatibility Requirements in Tenders, Standstill Period and Interim Relief, Principles of Equal Treatment
Public Procurement Administrative Law European Union Law Non Discrimination in Procurement Objective Justification of Award Criteria Compatibility Requirements in Tenders Standstill Period and Interim Relief Principles of Equal Treatment

Case Brief

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Parties

Elekta Limited

Pursuer

The Common Services Agency

Defender

Procedural Posture

Judicial Review / Procurement Challenge / Interim Order Application Under Regulation 47(10) of the Public Contracts (scotland) Regulations 2006

Legal Issues

  1. 1 Whether the requirement for compatibility with Varian ARIA RMS unlawfully excluded competition and breached procurement regulations and EU law principles
  2. 2 Whether stipulating a single provider for all sites was discriminatory or objectively justifiable
  3. 3 Whether the standstill period should be lifted under Regulation 47(10)

Ratio Decidendi

The requirement for compatibility with the existing Varian ARIA RMS and the stipulation of a single provider were objectively justifiable based on the operational needs of the health boards. The criteria did not breach the principles of equal treatment or non-discrimination, even if only one supplier could meet them. The pursuer's challenge had no reasonable prospect of success, and the balance of convenience and public interest favored granting the order to lift the standstill period.

Court Disposition

Order granted in favor of the defender; standstill period lifted.

Orders

  • The prohibition on entering into the contract under Regulation 47(10) is brought to an end, allowing the defender to proceed with the contract.