LIGHTWAYS (CONTRACTORS) Ltd v INVERCLYDE COUNCIL [2015] ScotCS CSOH_169 (15 December 2015)

LIGHTWAYS (CONTRACTORS) Ltd v INVERCLYDE COUNCIL [2015] ScotCS CSOH_169 (15 December 2015)

The award of the call off contract to LLP was unlawful because LLP was not a party to the Framework Agreement for Lot 9, in breach of regulation 19(3) of the 2012 Regulations. The error was not a mere clerical mistake but a substantive one, and the principle of proportionality does not apply to limit the pursuer's entitlement to challenge the breach. There was no defence to the pursuer's challenge, and summary decree was appropriate.

Citation
[2015] ScotCS CSOH_169
Parties
Pursuer: Lightways (Contractors) Limited; Defender: Inverclyde Council
Jurisdiction
Scotland
Judgment Date
15 December 2015
Procedural Posture
Judicial Review / Summary Decree Application
Outcome
Summary decree granted in favour of the pursuer; ineffectiveness order made.
Legal Topics
Framework Agreements, Public Contracts Regulations, Standing to Challenge Procurement, Ineffectiveness Order
Public Procurement Contract Law Framework Agreements Public Contracts Regulations Standing to Challenge Procurement Ineffectiveness Order

Case Brief

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Parties

Lightways (Contractors) Limited

Pursuer

Inverclyde Council

Defender

Procedural Posture

Judicial Review / Summary Decree Application

Legal Issues

  1. 1 Whether the award of a call off contract to an entity not party to the framework agreement is unlawful under the Public Contracts (Scotland) Regulations 2012
  2. 2 Whether the error in awarding the contract can be rectified by substitution or novation
  3. 3 Whether the principle of proportionality applies to limit the entitlement to challenge the award

Ratio Decidendi

The award of the call off contract to LLP was unlawful because LLP was not a party to the Framework Agreement for Lot 9, in breach of regulation 19(3) of the 2012 Regulations. The error was not a mere clerical mistake but a substantive one, and the principle of proportionality does not apply to limit the pursuer's entitlement to challenge the breach. There was no defence to the pursuer's challenge, and summary decree was appropriate.

Court Disposition

Summary decree granted in favour of the pursuer; ineffectiveness order made.

Orders

  • Sustain the pursuer’s first plea in law.
  • Make an ineffectiveness order in terms of regulation 49(5) of the 2012 Regulations in respect of the defenders’ decision dated 3 September 2015 to award a call off contract to LLP.