Sidey Ltd v Clackmannanshire Council & Anor [2009] ScotCS CSOH_166 (09 December 2009)

Sidey Ltd v Clackmannanshire Council & Anor [2009] ScotCS CSOH_166 (09 December 2009)

The Court held that the Public Contracts (Scotland) Regulations 2006 did apply to the procurement in question because the Council opted to follow the restricted procedure and thereby engaged Community obligations. The Council's failure to observe the standstill period and its admitted errors in evaluating tenders constituted breaches of the Regulations. However, once the contract was concluded, the only remedy available under Regulation 47(9) was damages, and the Court had no power to set aside or reduce the contract. The Council's voluntary adoption of the Regulations did not create additional remedies beyond those provided by law.

Citation
[2009] CSOH 166
Parties
Pursuer: Sidey Limited; First Defender: Clackmannanshire Council; Second Defender: Pyramid Joinery and Construction Limited
Jurisdiction
Scotland
Judgment Date
09 December 2009
Procedural Posture
Judicial Review / Procurement Challenge / Debate on Competency and Remedies
Outcome
Claim for remedies other than damages refused; only damages available post-contract conclusion.
Legal Topics
Public Contracts Below EU Threshold, Remedies for Breach of Procurement Regulations, Standstill Period, Effectiveness of Remedies, Cross Border Interest in Procurement
Public Procurement European Union Law Administrative Law Public Contracts Below EU Threshold Remedies for Breach of Procurement Regulations Standstill Period Effectiveness of Remedies Cross Border Interest in Procurement

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Parties

Sidey Limited

Pursuer

Clackmannanshire Council

First Defender

Pyramid Joinery and Construction Limited

Second Defender

Procedural Posture

Judicial Review / Procurement Challenge / Debate on Competency and Remedies

Legal Issues

  1. 1 Whether the Public Contracts (Scotland) Regulations 2006 apply to a below-threshold public works contract
  2. 2 Whether remedies other than damages are available after contract conclusion
  3. 3 Whether the Council's failure to observe the standstill period and errors in tender evaluation entitle the pursuer to set aside the contract

Ratio Decidendi

The Court held that the Public Contracts (Scotland) Regulations 2006 did apply to the procurement in question because the Council opted to follow the restricted procedure and thereby engaged Community obligations. The Council's failure to observe the standstill period and its admitted errors in evaluating tenders constituted breaches of the Regulations. However, once the contract was concluded, the only remedy available under Regulation 47(9) was damages, and the Court had no power to set aside or reduce the contract. The Council's voluntary adoption of the Regulations did not create additional remedies beyond those provided by law.

Court Disposition

Claim for remedies other than damages refused; only damages available post-contract conclusion.

Orders

  • Court refused to set aside or reduce the contract between the Council and the second defender.
  • Court held that the only remedy available to the pursuer is damages.