Jobsin.Company uk Plc v Department of Health
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DYSON,MR. JUSTICE ASTILL,LORD JUSTICE THORPE |
| Judgment Date | 13 July 2001 |
| Neutral Citation | [2001] EWCA Civ 1241 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | A2/2001/1202 |
| Date | 13 July 2001 |
[2001] EWCA Civ 1241
Lord Justice Thorpe
Lord Justice Dyson
Mr. Justice Astill
A2/2001/1202
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr Justice Blofeld)
Royal Courts of Justice
Strand
London WC2
MR. A. LEWIS (instructed by the DLA, Birmingham) appeared on behalf of the Appellant.
MR. J. CROW (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.
On 14th August 2000 the Department of Health ("DOH") issued an Electronic Briefing Recruitment Document ("the Briefing Document") inviting proposals for the development and management of an online recruitment service for the National Health Service ("NHS"). The website was to display job vacancies throughout the NHS and to be the vehicle for applications to fill them.
A number of tenders were submitted, including one from Internet Recruitment Solutions ("IRS"). IRS is a Trading name of Jobsin Co UK Plc ("Jobsin"). The tender was submitted on 3rd October 2000. On 17th November Jobsin was informed by the DOH that its tender was not to be included in the final short list. On 5th March 2001 Jobsin started proceedings, in which it claimed that the tender process had been conducted in breach of the Public Services Contracts Regulations 1993, SI 1993 No 3228 ("The Regulations"). It short, it contended (and still contends) that the services for which tenders were invited by the Briefing Document were "computer and related services" within the meaning of Part A of Schedule 1 to the Regulations, and not "personnel placement and supply services" within the meaning of Part B of that Schedule. By the proceedings Jobsin claimed, inter alia, (i) declarations that the tender invited by the Briefing Document was in respect of a Part A service and that the tendering procedure adopted by the DOH failed to comply with the regulations, and (ii) damages.
It is common ground that if the tender was properly to be classified as being for computer and related services, then the tender process was defective, in the sense that a number of the requirements of the regulations applicable to a Part A service were not complied with. On the other hand, if the tender was for personnel placement and supply services, it is agreed that all the material requirements of the regulations applicable to a Part B service were complied with.
On the trial of certain preliminary issues Blofeld J held that the tender was for computer and related services, so that there had been a breach of the regulations. The DOH appeals against that decision. There was also a limitation issue before the judge arising from the application of Regulation 32(4)(b) of the regulations. It is convenient to set out the relevant parts of regulation 32 at this stage. Regulation 32(1):
"The obligation on a contracting authority to comply with the provisions of these Regulations other than regulations 8(6), 10(7), 21(8), 23(3) and 27, and with any enforceable Community obligation in respect of a public services contract (other than one excluded from the application of these Regulations by regulation 6 or 7), is a duty owed to services providers."
Regulation 32(2):
"A breach of the duty owed pursuant to paragraph (1) [or paragraph 1A] above shall not be a criminal offence but any breach of the duty shall be actionable by any services provider who, in consequence, suffers, or risks suffering, loss or damage."
Regulation 32(4)(b):
"they are brought 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."
The judge held that the right of action arose on 17th November 2000, when the DOH informed Jobsin that it was excluded from taking further part in the tender process. It was accepted by the DOH that it could not take any point based on the failure by Jobsin to start proceedings after 12th December. This is because the DOH accept that it may have indicated to Jobsin, on or about 12th December, that it was proposing to restart the tender process, although, in the event, it decided not to do so. The judge held that there was no lack of promptitude on the part of Jobsin between 17th November and 12th December. He also considered what the position would have been if he had decided that the right of action first arose on 14th August when the Briefing Document was sent out. On that basis he held that Jobsin had three months in which to start proceedings, and that, in the exercise of his discretion, he would have extended time until 5th March. The DOH appeals against all aspects of the judge's decision in relation to the limitation point.
This appeal therefore concerns three issues: (a) what was the correct classification of the services which were the subject of the tenders that were submitted pursuant to the briefing document?; (b) when did the right of action, if any, first arise?, and (c) if the right of action arose on 14th August 2000 was the judge right to extend the time for bringing proceedings? If the right of action did not arise until 17th November, the DOH does not challenge the judge's decision to extend time. Since the regulations apply to the award of public services contracts generally, the second of these issues raises a point of general importance as to when a right of action arises for breach of a duty owed by a contracting authority to a service provider to comply with the provisions of the regulations. Moreover, if the right of action arose on 14th August, the third issue raises questions of some general application as to the principles by which an extension of time should be granted for the commencement of proceedings in these cases.
We heard full argument on the classification issue and agreed to rule on it even if we concluded that the DOH succeeded on its limitation defence. The DOH wanted, or at least did not oppose, a ruling on the classification issue. That was because it has given an undertaking that, if this court decides that the tender process was not conducted in accordance with the regulations, then, even if the DOH succeeds on the limitation issue, it will not carry the tender process forward in its present form. In view of that undertaking, Jobsin's primary concern in these proceedings has been to succeed on the classification issue. It is not interested in pursuing a claim for damages for breach of a duty owed to it under regulation 32(1). For that reason it is not particularly interested in the limitation question. Conversely, the DOH is intensely interested in the limitation issue since, for reasons that will become clear, it contends that the judge misdirected himself, both on the question when the right of action first arose and as to the correct approach to extending time under regulation 32(4)(b). Accordingly, I shall deal with all the issues that were argued before us.
The statutory material. The regulations.
So far as material the regulations provide as follows:
"2(2) For the purposes of these regulations -
(a) 'a Part A services contract' is a contract under which services specified in Part A of Schedule 1 are to be provided;
(b) 'a Part B services contract' is a contract under which services specified in Part B of Schedule 1 are to be provided,
and, where services specified in both Parts A and B are to be provided under a single contract, then
(i) the contract shall be treated as a Part A services contract if the value of the consideration attributable to the services specified in Part A is greater than that attributable to those specified in Part B; and
(ii) the contract shall be treated as a Part B services contract if the value of the consideration attributable to the services specified in Part B is equal to or greater than that attributable to those specified in Part A.
5(1): Whenever a contracting authority seeks offers in relation to a proposed Part A services contract other than one excluded by virtue of regulation 6 or 7, these Regulations apply in their entirety.
(2) Whenever a contracting authority seeks offers in relation to a proposed Part B services contract other than one excluded by virtue of regulation 6 or 7, Part 1 (General) and Part V11 (Applications to the court) apply but only the following provisions in Parts 11 to V1 apply -
regulation 8 (Technical specifications in contract documents)
regulation 22 (Contract award notices)
regulation 27(2) (Statistical and other reports)
regulation 28 (Responsibility for obtaining reports)
regulation 29 (Publication of notices).
21(1): Criteria for the award of a public services contract
Subject to paragraphs (5), (6) and (7) below, a contracting authority shall award a public services contract on the basis of the offer which -
(a) is the most economically advantageous to the contracting authority, or
(b) offers the lowest price.
(2) The criteria which a contracting authority may use to determine that an offer is the most economically advantageous include period for completion or delivery, quality, aesthetic and functional characteristics, technical merit, after sales service, technical assistance and price.
(3) Where a contracting authority intends to award a public services contract on the basis of the offer which is the most economically advantageous it shall state the criteria on which it intends to base its decision, where possible in descending order of importance, in the contract notice or in the contract documents."
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