Healthcare At Home Ltd V. The Common Services Agency
| Jurisdiction | Scotland |
| Judge | Lord Hodge |
| Neutral Citation | [2012] CSOH 75 |
| Date | 01 May 2012 |
| Docket Number | CA132/10 |
| Court | Court of Session |
| Published date | 02 May 2012 |
| OUTER HOUSE, COURT OF SESSION [2012] CSOH 75 | |
| CA132/10 | OPINION OF LORD HODGE in the cause HEALTHCARE AT HOME LIMITED Pursuer; against THE COMMON SERVICES AGENCY Defender: ________________ |
Pursuer: Sandison QC; Maclay Murray & Spens LLP
Defender: Clark QC et S Smith; R F Macdonald
1 May 2012
[1] In this action Healthcare at Home Limited ("HAH") seeks an order under Regulation 47A(1)(b)(i) of the Public Contracts (Scotland) Regulations 2006 (SSI 2006/1) as amended ("the 2006 Regulations") to set aside a decision by the Common Services Agency ("CSA") to award a framework agreement known as "NP341/10 Trastuzumab Homecare and Near Patient Treatment Services" ("the Framework Agreement") to BUPA Home Healthcare ("BUPA").
Summary of background
[2] Before the invitation to tender, HAH had provided CSA with goods and services for about eight years under a contract or contracts which the Framework Agreement was designed to replace. On 24 February 2010 CSA invited tenders for the Framework Agreement in a process which was subject to the 2006 Regulations. On 7 April 2010 HAH submitted its tender. Scorers with appropriate professional expertise evaluated the tenders and a Clinical Advisory Panel met on 28 April 2010 in an "award of business meeting" to discuss their assessments. Thereafter CSA calculated which tenderer had obtained the highest overall score. On 13 May 2010 CSA informed HAH that its tender had been unsuccessful and that BUPA was the successful tenderer. On 20 and 21 May 2010 HAH's solicitors wrote to CSA challenging the decision and alleging that CSA had breached its duties under the 2006 Regulations. By e-mail dated 27 May 2010 CSA provided further information about its decision.
[3] HAH asserts that CSA was in breach of Regulations 4(3), 30 and 32 of the 2006 Regulations. I set out the relevant parts of the 2006 Regulations in paragraphs [4] to [9] below. In summary, HAH criticises CSA for a lack of transparency, a failure to disclose all of the relevant criteria in the invitation to tender, and a failure to give sufficiently clear reasons for its decision to enter into the Framework Agreement with BUPA.
The Statutory Framework
[4] The 2006 Regulations implement Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 ("the Public Sector Directive"). There was no suggestion that the requirements of the Directive had not been transposed into the 2006 Regulations.
[5] Regulation 4(3) of the 2006 Regulations provides:
"A contracting authority shall -
(a) treat economic operators equally and without discrimination; and
(b) act in a transparent and proportionate manner."
[6] Regulation 30 of the 2006 Regulations provides (so far as relevant):
(1) ...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
(b) offers the lowest price.
(2) A contracting authority shall use criteria linked to the subject matter of the contract to determine that an offer is the most economically advantageous including quality, price, technical merit, aesthetic and functional characteristics, environment characteristics, running costs, cost effectiveness, after sales service, technical assistance, delivery date and delivery period or period of completion.
(3) Where a contracting authority intends to award a public contract on the basis of the offer which is the most economically advantageous it shall state the weighting which it gives to each of the criteria chosen in the contract notice or in the contract documents or, in the case of a competitive dialogue procedure, in the descriptive document.
...
(5) Where, in the opinion of the contracting authority, it is not possible to provide weightings for the criteria referred to in paragraph (3) on objective grounds, the contracting authority shall indicate the criteria in descending order of importance in the contract notice or contract documents or, in the case of a competitive dialogue procedure, in the descriptive document.
[7] Regulation 32, which governs the information which the contracting authority has to provide about its decision to award a contract to a tenderer or make it a party to a framework agreement, provides so far as relevant:
(1) Subject to paragraphs (4) and (10), a contracting authority shall by notice in writing as soon as possible after the decision has been made, inform all tenderers and all candidates concerned (if any) of its decision to -
(a) award the contract; or
(b) conclude the framework agreement.
(2) The notice referred to in paragraph (1) shall include -
(a) the criteria for the award of the contract;
(b) where practicable, the score obtained by -
(i) the economic operator which is to receive the notice; and
(ii) the economic operator -
(aa) to be awarded the contract; or
(bb) to become a party to the framework agreement
(c) the name of the economic operator -
(i) to be awarded the contract; or
(ii) to become a party to the framework agreement;
(d) in the case of an unsuccessful economic operator, a summary of the reasons why the economic operator was unsuccessful;
(e) in the case of an unsuccessful tenderer, the characteristics and relative advantages of the successful tender; and
...
(3) A contracting authority shall allow a period of at least the relevant standstill period to elapse between the date of despatch of the notice referred to in paragraph (1) and the date on which that contracting authority enters into the contract or concludes the framework agreement.
...
(6) Subject to paragraph (10), a contracting authority shall within 15 days of the date on which it receives a request in writing from any economic operator which was unsuccessful -
(a) inform that economic operator of the reasons why it was unsuccessful; and
(b) in the case of an unsuccessful tenderer, other than a tenderer which has been informed by notice under paragraph (1), inform that economic operator of the characteristics and relative advantages of the successful tender and the name of -
.....
(ii) the parties to the framework agreement;
...
(12) A contracting authority shall keep appropriate information to document the progress of contract award procedures conducted by electronic means.
[8] Regulation 47, which enables an economic operator to apply to the court to enforce obligations under the 2006 Regulations, provides:
(1) The obligation on -
(a) a contracting authority to comply with the provisions of these Regulations...
is a duty owed to an economic operator.
...
(5) A breach of the duty owed under paragraph (1) or (2) is actionable by any economic operator which, in consequence of the breach, suffers, or risks suffering, loss or damage and such proceedings may be brought in either the Sheriff Court or the Court of Session.
(6) Proceedings under this Part shall not be brought unless -
(a) the economic operator bringing the proceedings has informed the contracting authority or concessionaire, as the case may be, of -
(i) the breach or apprehended breach of the duty owed to it in accordance with paragraph (1) or (2); and
(ii) its intention to bring proceedings under this Part in respect of that breach or apprehended breach; and
(b) the proceedings are brought in accordance with paragraph (7).
(7) For the purposes of paragraph (6)(b), proceedings shall be brought -
...
(b) in any other case, promptly and in any event within 3 months from the date when grounds for the bringing of the proceedings first arose unless the Court considers that there is good reason for extending the period within which proceedings may be brought.
[9] Regulation 47A provides:
(1) Subject to paragraphs (3) and (7), but otherwise without prejudice to any other powers of the Court, in proceedings brought under this Part the Court -
...
(b) if satisfied that a decision or action taken by a contracting authority or concessionaire was in breach of the duty owed under Regulation 47(1) or (2), may -
(i) order the setting aside of that decision or action;
...
The case law applicable to the 2006 Regulations
[10] There is, as is well-known, extensive case law of the Court of Justice of the European Communities ("ECJ") on the Public Sector Directive and the earlier directives relating to public procurement procedures. Absent legislative innovation which pursues different goals, that case law is relevant to the interpretation of the 2006 Regulations (a) because the court must seek to achieve the result pursued by the Directive and (b) as a provision of EU law must be interpreted in the context of EU law as a whole (Marleasing SA v Commercial Internacional de Alimentacion SA [1990] ECR I-4135, at para 8; C.I.L.F.I.T. v Ministry of Health [1982] ECR 3415, at para 20). In my view the principal features of that case law, so far as relevant to this case, can be summarised in the following propositions.
[11] First, the principle of equal treatment, which lies at the heart of the public procurement directives, requires that the tenderers must be in a position of equality both when they formulate their tenders and also when the contracting authority assesses those tenders (SIAC Construction Ltd v County Council of Mayo [2001] ECR I-7725, at para 34; Concordia Bus Finland Oy Ab v Helsingin Kaupunki [2002] ECR I-7213, at para 81; and ATI EAC Srl v ACTV Venezia SpA [2005] ECR I-10109, at para 22).
[12] Secondly, the contracting authority must apply the principle of non-discrimination, which is one of the fundamental principles of EU law, when it chooses the criteria on which it proposes to base the award of a contract (Concordia Bus (above) at para 63). This principle also obliges the contracting authority to apply the award criteria objectively and uniformly to all tenderers (SIAC (above) at para 44).
[13] Thirdly, the principle of equal treatment implies an obligation of transparency so as to afford equality of...
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