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 Public Contracts (Scotland) Regulations 2006 do not apply in their entirety to below-threshold contracts unless specific Community obligations are engaged, which requires a cross-border element or the authority's assessment that such obligations apply. Remedies for breach of procurement obligations after contract conclusion are limited to damages under Regulation 47(9). The Council's errors and breach of the standstill period do not entitle the pursuer to reduction or setting aside of the contract; only damages are competent. The Council's voluntary adoption of the restricted procedure and the regulations does not override the statutory limitation on remedies post-contract.

Citation
[2009] ScotCS 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 / Opinion Following Debate on Competency and Remedies
Outcome
Pursuer's claim for reduction or setting aside of the contract refused; only damages are competent post-contract.
Legal Topics
Public Contracts Below EU Threshold, Remedies for Breach of Procurement Rules, Standstill Period, Effectiveness of Remedies, Reduction of Contract, Damages for Breach of Procurement Obligations
Public Procurement European Union Law Administrative Law Public Contracts Below EU Threshold Remedies for Breach of Procurement Rules Standstill Period Effectiveness of Remedies Reduction of Contract +1 more

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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 / Opinion Following Debate on Competency and Remedies

Legal Issues

  1. 1 Does the Public Contracts (Scotland) Regulations 2006 apply to below-threshold contracts?
  2. 2 Are remedies other than damages (such as reduction of contract) available after contract conclusion?
  3. 3 Is the standstill period mandatory for below-threshold contracts where the authority has opted into the regulations?

Ratio Decidendi

The Public Contracts (Scotland) Regulations 2006 do not apply in their entirety to below-threshold contracts unless specific Community obligations are engaged, which requires a cross-border element or the authority's assessment that such obligations apply. Remedies for breach of procurement obligations after contract conclusion are limited to damages under Regulation 47(9). The Council's errors and breach of the standstill period do not entitle the pursuer to reduction or setting aside of the contract; only damages are competent. The Council's voluntary adoption of the restricted procedure and the regulations does not override the statutory limitation on remedies post-contract.

Court Disposition

Pursuer's claim for reduction or setting aside of the contract refused; only damages are competent post-contract.

Orders

  • Refusal of order to set aside the Council's decision to award the contract to the second defender
  • Refusal of order for reduction or suspension of the contract between the Council and the second defender