Tendering Process in UK Law

I would, however, immediately agree that that analysis does not and should not exclude public law entirely from the contract-awarding process, even if there were no statutory breaches involved: for instance, if there were bribery, corruption or the implementation of a policy unlawful in itself, either because it was ultra vires or for other reasons, as was the case in Roberts v Hopwood and Wheeler v Leicester City Council, both of which was cited by Elias J in Molinaro v Kensington & Chelsea Borough Council [2002] LGR 336.

Under those circumstances I find that there are no sufficient public law aspects to the challenge to make it amenable to judicial review. I reach this conclusion as a matter of judgment on the facts in this case and within its overall context. I do not go so far as to say that a public law challenge to a tendering or pre-qualification process on the basis of irrationality could never be entertained. I think that the circumstances under which it could be entertained must be rare.

Firstly, this is not, in our judgment, a case analogous to one where goods or money have been entirely restored to the loser. True it is that Network Rail received value for money, but Mr Sale had obtained contracts for his company by corrupt means on a continuing basis so that every contract obtained was tainted by it. The substantial market in Network Rail contracts of this type was distorted, with the company gaining a market share to the detriment of others.

Applying those observations to this case and having regard to Waya, and in particular paragraph 34, had this been an offence whose only criminal effect was upon Network Rail which had been provided with value for money achieved by the performance of a contract which required the company to expend monies in the ordinary course of business, it would have seemed to us proportionate to limit the confiscation order to the profit made, and to treat the full value given under the contract as analogous to full restoration to the loser.

It would be strange if a complaint could not be brought until the process has been completed. A contract may have been concluded with the successful bidder. They can be made as soon as there has occurred a breach which may cause one of the bidders to suffer loss. There was no good reason for postponing the earliest date when proceedings can begin beyond that date.

As to proportionality, the judge acknowledged the “harsh economic consequences of the inability to tender” as expressed at paragraph 70. However, he gave “weighty reasons against the grant of an extension”. The decision not to permit an extension was not, in the circumstances, disproportionate. The need for an extension could not be attributed to any fault on the part of the respondents or to any factor outside the control of the appellants.

A loss of an opportunity to take part in a fair tendering process on equal terms with other bidders may be difficult to evaluate in monetary terms but cannot be said to be on no commercial value at all. Indeed, it had been returning some to the market. The evidence filed by the council comes from Mr Frank MacCool, the scrutiny and project manager in its housing and public protection service.