First4Skills Ltd v Department for Employment and Learning
| Jurisdiction | Northern Ireland |
| Judge | McCloskey J |
| Judgment Date | 30 June 2011 |
| Neutral Citation | [2011] NIQB 59 |
| Date | 30 June 2011 |
| Court | Queen's Bench Division (Northern Ireland) |
| Year | 2011 |
1
Neutral Citation No. [2011] NIQB 59 Ref:
McCL8241
Judgment: approved by the Court for handing down Delivered:
30/06/11
(subject to editorial corrections)*
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
______
QUEEN'S BENCH DIVISION
(COMMERCIAL LIST)
________
BETWEEN:
FIRST4SKILLS LIMITED
Plaintiff;
-and-
DEPARTMENT FOR EMPLOYMENT
AND LEARNING
Defendant.
__________
McCLOSKEY J
I INTRODUCTION
[1] This is an application by the Department for Employment and Learning (“the
Department”), the Defendant herein, for an order pursuant to Regulation 47H of the
Public Contracts Regulations 2006 terminating the requirement imposed by
Regulation 47G(1) whereby the Department is currently precluded from entering
into any contract for the provision of training services under the “Department for
Employment and Learning Training for Success and Apprenticeships Northern
Ireland” Procurement Project.
[2] I consider that this application raises two main issues to be determined by the
court:
(a) The first is whether it is open to the court to grant the relief sought by
the Department in the particular circumstances prevailing.
(b) The second is whether, in any event, there is a sufficient basis for
granting the relief in question.
2
II LEGAL FRAMEWORK
[3] The legal framework within which this application unfolds is contained in
The Public Contracts Regulations 2006 (“the 2006 Regulations”), as amended by The
Public Contracts (Amendment) Regulations 2009 (“the 2009 Regulations”). By
Regulation 4(3) of the 2006 Regulations:
“A contracting authority shall (in accordance with Article 2
of the Public Sector Directive) –
(a) treat economic operators equally and in a non-
discriminatory way; and
(b) act in a transparent way.”
Under the scheme of the Regulations, there are two different types of contract, “Part
A” and “Part B”. [The contract being procured in the process giving rise to the
present challenge is of the latter variety]. The distinction between these two species
of contract is of some significance, given that the regulatory and restrictive regime
established by the 2006 Regulations is less intrusive in the case of a Part B public
services contract: see, in particular, Regulation 5. The general principles enshrined
in Regulation 4(3), quoted above, apply to both types of contract. Bearing in mind
the issues raised in the present litigation, it is appropriate to highlight Regulation 26:
“Subject to regulation 27, the contracting authority may
require an economic operator to provide information
supplementing the information provided in accordance with
regulations 23, 24 or 25 or to clarify that information,
provided that the information so required relates to the
matters specified in regulations 23, 24 or 25.”
This Regulation applies only to Part A contracts. Accordingly, the powers which it
expressly confers on a contracting authority were not exercisable by the Department
in the competition giving rise to these proceedings. However, there is jurisprudence
of the European Court of Justice in support of the proposition that it may be
appropriate for a contracting authority to seek clarification of a tender in furtherance
of the principle of proportionality (infra).
[4] The issue of the criteria governing the award of a public contract is addressed
in Regulation 30, in the following terms:
“(1) Subject to regulation 18(27) and to paragraphs (6) and
(9) of this regulation, a contracting authority shall award a
public contract on the basis of the offer which—
(a) is the most economically advantageous from the point
of view of the contracting authority; or
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...Resources North West Ltd v Secretary of State for Home Department [2011] First4skills Ltd v Department for Employment and Learning [2011] NIQB 59. Rutledge Recruitment Limited V Department For Employment And Learning -and- Anor, [2011] NIQB 61 American Cyanamid & Co v Ethicon [1975] AC ......