British Telecommunications Plc v Common Services Agency [2014] ScotCS CSOH_44 (07 February 2014)

British Telecommunications Plc v Common Services Agency [2014] ScotCS CSOH_44 (07 February 2014)

The defender breached the transparency requirement by failing to disclose that failure to meet the basics of one requirement within a sub-criterion would limit the maximum possible score. However, the breach was not so serious or directly causative of the contract outcome as to justify setting aside the award. Given the potential public harm and the adequacy of damages as a remedy, the court refused to set aside the contract and limited the pursuer to a claim for damages.

Citation
[2014] ScotCS CSOH_44
Parties
Pursuer: British Telecommunications plc; Defender: Common Services Agency
Jurisdiction
Scotland
Judgment Date
07 February 2014
Procedural Posture
Judicial Review / Procurement Challenge / Post Debate Ruling on Remedies
Outcome
Pursuer's motion to set aside the contract refused; defender's application to allow contract completion granted; pursuer limited to damages claim.
Legal Topics
Transparency in Procurement, Remedies for Breach of Procurement Regulations, Scoring Methodology Disclosure, Time Bar in Procurement Challenges
Public Procurement Administrative Law Transparency in Procurement Remedies for Breach of Procurement Regulations Scoring Methodology Disclosure Time Bar in Procurement Challenges

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Parties

British Telecommunications plc

Pursuer

Common Services Agency

Defender

Procedural Posture

Judicial Review / Procurement Challenge / Post Debate Ruling on Remedies

Legal Issues

  1. 1 Whether the defender breached the transparency requirement in regulation 4(3) of the Public Contracts (Scotland) Regulations 2012 by failing to disclose part of the scoring methodology
  2. 2 Whether the pursuer's claim is time-barred
  3. 3 Whether the pursuer's notice of complaint was sufficiently specific under regulation 47(6)

Ratio Decidendi

The defender breached the transparency requirement by failing to disclose that failure to meet the basics of one requirement within a sub-criterion would limit the maximum possible score. However, the breach was not so serious or directly causative of the contract outcome as to justify setting aside the award. Given the potential public harm and the adequacy of damages as a remedy, the court refused to set aside the contract and limited the pursuer to a claim for damages.

Court Disposition

Pursuer's motion to set aside the contract refused; defender's application to allow contract completion granted; pursuer limited to damages claim.

Orders

  • Refused order to set aside contract award to Capita.
  • Granted order under regulation 47(9)(b) permitting completion of contract with Capita.