Transparency in regulated procurements

A county council has recently defended a waste company’s application for summary judgment in a procurement dispute. Joseph Barrett explains how.

In Biffa Waste Services Limited v Leicestershire County Council [2021] EWHC 1764 (TCC) the High Court (Joanna Smith J) dismissed Biffa’s application for summary judgment on claims under the Public Contracts Regulations 2015 (“the PCR 2015”) for breach of the duty of transparency/misrepresentation arising from the conduct of a competitive dialogue procedure relating to the award of a substantial waste processing and services contact with a value of up to £425 million.

During the competition, LCC had at one stage provided bidders with anonymised details of the bidders’ interim scores. Subsequent to the anonymised information being provided, one of the bidders withdrew from the competition and another, different, bidder was re-admitted.

Biffa alleged that it had deduced the identities of the bidders from the anonymised information provided by LCC and that in subsequently formulating its bidding strategy it had relied on the fact that those were the bidders who it would be competing against in the final stage of the competition. Biffa alleged that LCC had accordingly breached its duty of transparency or misrepresented the position by not updating the anonymised information it had previously provided to the bidders.

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The Court held that the application for summary judgment should be rejected on a number of grounds, including (inter alia):

(i) The PCR 2015 did not expressly impose a legal duty of the sort contended for, and the principal case on which Biffa relied was far removed from the facts of the present case.

(ii) The claims raised a number of disputed questions of fact and causation, which could not be safely or fairly resolved on a summary judgment application.

(iii) The procurement was subject to a re-evaluation, the outcome of which might be that Biffa would be awarded the contract. In those circumstances, the application for summary judgment was premature.

The Judgment contains a number of important points regarding the scope of application of the principle of transparency in regulated procurements and the requirement to establish causation of loss or damage.

Joseph Barrett of 11KBW was sole counsel for the successful Respondent, Leicestershire County Council, instructed by Bevan Brittan.

Jason Coppel QC and Rupert Paines, also of 11KBW, appeared on behalf of the Applicant, Biffa, instructed by CMS Cameron McKenna.

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