A C WHYTE & COMPANY LTD AGAINST RENFREWSHIRE COUNCIL [2020] ScotCS CSOH_82 (04 September 2020)

A C WHYTE & COMPANY LTD AGAINST RENFREWSHIRE COUNCIL [2020] ScotCS CSOH_82 (04 September 2020)

The council did not breach the obligation of transparency or the terms of the ITT. The ITT allowed for self-certification of turnover and permitted the council to accept alternative proposals for meeting financial requirements. There was no requirement to adjust for inter-company trading, and the council acted within its discretion in accepting Procast's combined turnover with its consortium partners. Any inconsistencies or lack of joint and several liability did not affect the assessment of tenders. The action was not time-barred, but the claim fails on the merits.

Citation
[2020] ScotCS CSOH_82
Parties
Pursuer: A C Whyte & Company Limited; Defender: Renfrewshire Council
Jurisdiction
Scotland
Judgment Date
04 September 2020
Procedural Posture
Action for Damages (public Procurement) / Judgment After Proof (trial) on Liability Only
Outcome
Pursuer's claim refused; decree of absolvitor granted in favour of the council.
Legal Topics
Transparency in Procurement, Tender Evaluation, Consortium Bidding, Minimum Turnover Requirements, Judicial Review of Procurement Decisions
Public Procurement Contract Law Administrative Law Transparency in Procurement Tender Evaluation Consortium Bidding Minimum Turnover Requirements Judicial Review of Procurement Decisions

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Parties

A C Whyte & Company Limited

Pursuer

Renfrewshire Council

Defender

Procedural Posture

Action for Damages (public Procurement) / Judgment After Proof (trial) on Liability Only

Legal Issues

  1. 1 Whether the council breached its obligation of transparency under regulation 19(1) of the Public Contracts (Scotland) Regulations 2015 in awarding the contract to Procast.
  2. 2 Whether the council failed to properly assess Procast's compliance with minimum turnover requirements, including consideration of inter-company trading.
  3. 3 Whether the contract award was made in accordance with the terms of the Invitation to Tender (ITT).

Ratio Decidendi

The council did not breach the obligation of transparency or the terms of the ITT. The ITT allowed for self-certification of turnover and permitted the council to accept alternative proposals for meeting financial requirements. There was no requirement to adjust for inter-company trading, and the council acted within its discretion in accepting Procast's combined turnover with its consortium partners. Any inconsistencies or lack of joint and several liability did not affect the assessment of tenders. The action was not time-barred, but the claim fails on the merits.

Court Disposition

Pursuer's claim refused; decree of absolvitor granted in favour of the council.

Orders

  • Repel the pursuer’s pleas in law.
  • Repel the council’s first plea in law (time bar).