Henry Brothers (Magherafelt) Ltd, FB McKee & Co Ltd and Desmond Scott and Philip Ewing Trading as Woodvale Construction Company Ltd v Department of Education for Northern Ireland
| Jurisdiction | Northern Ireland |
| Judge | Morgan LCJ |
| Judgment Date | 2011 |
| Neutral Citation | [2011] NICA 59 |
| Court | Court of Appeal (Northern Ireland) |
| Date | 26 September 2011 |
1
Neutral Citation No. [2011] NICA 59 Ref:
MOR8309
Judgment: approved by the Court for handing down Delivered:
26/09/2011
(subject to editorial corrections)*
IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND
________
BETWEEN:
HENRY BROTHERS (MAGHERAFELT) LIMITED,
F B MCKEE AND COMPANY LIMITED and
DESMOND SCOTT and PHILIP EWING
TRADING AS WOODVALE CONSTRUCTION COMPANY LIMITED
Plaintiffs/Respondents;
-and-
DEPARTMENT OF EDUCATION FOR NORTHERN IRELAND
Defendant/Appellant.
________
Before: Morgan LCJ, Higgins LJ, and Weatherup J
________
MORGAN LCJ
[1] The appellant Government department commenced a competition
under the restricted procedure as provided for in Regulation 12 of the Public
Contract Regulations 2006 (the 2006 Regulations) for contractors to be placed
on a framework agreement (the primary competition stage) whereby they
could then tender for individual works contracts (the secondary competition
stage). Following their failure to be placed on the framework agreement the
respondents, a consortium of building contractors, commenced proceedings
under the 2006 Regulations claiming breach of statutory duty, breach of
obligations under the EC Treaty and breach of contract. Coghlin J found for
the plaintiffs on the issue of liability and ordered that the framework
agreement be set aside as the remedy for the breach. The appellant now
appeals against those decisions on the grounds that the learned judge erred in
finding that price was a mandatory criterion in the selection process for the
most economically advantageous tender, that the respondents’ claim was not
statute barred and that he had the power to set aside the framework
2
agreement. Mr Giffen QC appeared with Mr McMillen and Mr Williams for
the appellant and Mr Bowsher QC with Mr Girvan for the respondents. We
are grateful to all counsel for their helpful oral and written submissions.
Statutory scheme
[2] The 2006 Regulations were made to implement the obligation of the
United Kingdom to transpose Directive 2004/18/EC on procurement through
public contracts and also to reflect the requirements of Directive 89/665/EEC
which was the operative directive on remedies at the time.
[3] Regulation 2(1) set out the definition of framework agreements.
“framework agreement” means an agreement or other
arrangement between one or more contracting
authorities and one or more economic operators
which establishes the terms (in particular the terms as
to price and, where appropriate, quantity) under
which the economic operator will enter into one or
more contracts with a contracting authority in the
period during which the framework agreement
applies”
Regulation 12 dealt with the procedures for the award of public contracts and
Regulation 19 set out corresponding requirements in relation to framework
agreements.
“19 Framework agreements
(1) A contracting authority which intends to
conclude a framework agreement shall comply with
this regulation.
(2) Where the contracting authority intends to
conclude a framework agreement, it shall—
(a) follow one of the procedures set out in
regulation 15, 16, 17 or 18 up to (but not
including) the beginning of the procedure for
the award of any specific contract set out in
this regulation; and
(b) select an economic operator to be party to a
framework agreement by applying award
criteria set in accordance with regulation 30.
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