Joseph Gleave & Son Ltd v Secretary of State for Defence
| Jurisdiction | England & Wales |
| Judge | The Hon Mr Justice Coulson,The Hon. Mr Justice Coulson |
| Judgment Date | 17 February 2017 |
| Neutral Citation | [2017] EWHC 238 (TCC) |
| Docket Number | Case No: HT-2016-000302 |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 17 February 2017 |
[2017] EWHC 238 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Royal Courts of Justice
Rolls Building, Fetter Lane, London, EC4A 1NL
The Hon Mr Justice Coulson
Case No: HT-2016-000302
Jason Coppel QC and Fiona Banks (instructed by Weightmans LLP) for the Claimant
Sarah Hannaford QC and Ewan West (instructed by Treasury Solicitor) for the Defendant
Hearing date: 3 February 2017
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
INTRODUCTION
This is a dispute about the ongoing procurement of over 6,000 product lines of hand tools for essential military needs. Following various delays, the second stage of the tender process is now likely to be completed at the end of February 2017, and the award of the contract is scheduled for early May 2017. At the CMC on 3 February, when considering the procedural way forward, the parties adopted polarised positions: the claimant sought an expedited trial so that the outcome of its challenge would be known before the contract was awarded in early May, whilst the defendant sought a stay of the proceedings until after the contract award.
The hearing took significantly longer than the parties had estimated, in part because both sides were also using their respective applications to try and obtain tactical advantages for the future, particularly if the trial was not expedited and there was then a dispute about the contract award. In addition, both sides indicated that the outcome of this procedural dispute might have ramifications beyond the confines of these particular proceedings: towards the end of his submissions in reply, Mr Coppel expressly warned me about "the message" I would be sending to prospective claimants in procurement cases if I refused his application.
For these reasons, I had no real option but to reserve judgment. After the hearing, the parties provided yet further written arguments. On the next working day after the hearing (6 February), I informed leading counsel of the result and the particular order I proposed to make. I refer to that in greater detail at the end of this Judgment, at paragraphs 60–63 below.
This Judgment is structured as follows. In Section 2, I set out the factual background. In Section 3, I address the general principles of law concerned with speedy relief in procurement cases. In Section 4, I identify certain particular features of this case which I consider to be relevant to the applications before the court. Then, in Section 5, I deal with the principles relating to expedition and, in Section 6, analyse the claimant's claim for expedition. In Section 7, I address separately the defendant's application for a stay.
THE FACTUAL BACKGROUND
This procurement for hand tools has had a chequered history. There were at least two attempts in 2015 to procure hand tools by reference to particular manufacturers. These procurements were challenged by the claimant and subsequently abandoned. In February 2016, there was a procurement in respect of hand tools by reference to technical specifications ("the first 2016 procurement"). That procurement too was challenged by the claimant in the TCC, but proceeded to tender evaluation. I am told that it did not lead to a contract because no compliant bids were received.
In relation to the first 2016 procurement, following the challenge by the claimant but before the outcome of the tender process was known, the claimant's solicitors wrote to the Treasury Solicitor on 5 May 2016 to propose a stay of the proceedings pending the outcome of the tender process. The defendant agreed to that suggestion. That is the course of action now proposed by the defendant in respect of the latest challenge, but it is opposed by the claimant.
The current procurement is a further attempt to procure hand tools for essential military needs. The tender documents were made available at some point between 7 and 12 October 2016 (the precise date, like everything else in this case, appears to be disputed). The relevant product lines are set out within Annex A to the Invitation to Tender ("ITT"). Many are referenced by a Manufacturers' Part Number ("MPN"). The claimant contends that this is a breach of the Public Contracts Regulations 2015 ("the Regulations"): they argue that the use of MPNs cannot be justified and that, accordingly, the use of MPNs is an unlawful obstacle to the opening up of the procurement to competition.
The claimant's letter of claim was dated 2 November 2016. The Claim Form was issued on 10 November 2016, and the Particulars of Claim served on 17 November 2016. The Defence was served on 15 December 2016, and included the assertion of a limitation defence. The Reply was dated 23 January 2017.
It was not until 23 January 2017 that the claimant suggested, for the first time, that the trial in these proceedings should be expedited. A trial date of 13 March was suggested. Subsequently, in the days leading up to the CMC on 3 February, the claimant produced a flurry of proposals dealing with the detail of how the trial might be expedited. As previously noted, however, the parties' positions remained polarised.
SPEED IN PROCUREMENT CASES
The importance of speed in procurement cases was first identified in the Council Directive (89/665/EEC) (as amended), commonly known as the "Remedies Directive". The preamble to the Remedies Directive stated:
"Whereas the opening-up of public procurement to Community competition necessitates a substantial increase in the guarantees of transparency and non-discrimination; whereas, for it to have tangible effects, effective and rapid remedies must be available in the case of infringements of Community law in the field of public procurement or national rules implementing that law…
Whereas, since procedures for the award of public contracts are of such short duration, competent review bodies must, among other things, be authorized to take interim measures aimed at suspending such a procedure or the implementation of any decisions which may be taken by the contracting authority; whereas the short duration of the procedures means that the aforementioned infringements need to be dealt with urgently…"
The relevant parts of the Articles (as amended) state:
" Article 1
Member States shall take the measures necessary to ensure that, as regards contracts…decisions taken by the contracting authorities may be reviewed effectively and, in particular, as rapidly as possible in accordance with the conditions set out in the following Articles 2–2F of this Directive…
Article 2
1. The Member States shall ensure that the measures taken concerning the review procedures specified in Article 1 include provision for the powers to:
…
(b) either set aside or ensure the setting aside of decisions taken unlawfully, including the removal of discriminatory technical, economic or financial specifications in the invitation to tender, the contract documents or in any other document relating to the contract award procedure…"
The United Kingdom complied with the Remedies Directive through the Public Contracts Regulations, which have been amended on a number of occasions and are now in the 2015 version. The Regulations concerned with time limits are Regulations 92 and 94–96 as follows:
" General time limits for starting proceedings
92. (1) This regulation limits the time within which proceedings may be started where the proceedings do not seek a declaration of ineffectiveness.
(2) Subject to paragraphs (3) to (5), such proceedings must be started within 30 days beginning with the date when the economic operator first knew or ought to have known that grounds for starting the proceedings had arisen.
(3) Paragraph (2) does not require proceedings to be started before the end of any of the following periods:-
(a) where the proceedings relate to a decision which is sent to the economic operator by facsimile or electronic means, 10 days beginning with—
(i) the day after the date on which the decision is sent, if the decision is accompanied by a summary of the reasons for the decision;
(ii) if the decision is not so accompanied, the day after the date on which the economic operator is informed of a summary of those reasons;
(b) where the proceedings relate to a decision which is sent to the economic operator by other means, whichever of the following periods ends first:-
(i) 15 days beginning with the day after the date on which the decision is sent, if the decision is accompanied by a summary of the reasons for the decision;
(ii) 10 days beginning with—
(aa) the day after the date on which the decision is received, if the decision is accompanied by a summary of the reasons for the decision; or
(bb) if the decision is not so accompanied, the day after the date on which the economic operator is informed of a summary of those reasons;
(c) where sub-paragraphs (a) and (b) do not apply but the decision is published, 10 days beginning with the day on which the decision is published.
(4) Subject to paragraph (5), the Court may extend the time limits imposed by this regulation (but not any of the limits imposed by regulation 93) where the Court considers that there is a good reason for doing so.
(5) The Court must not exercise its power under paragraph (4) so as to permit proceedings to be started more than 3 months after the date when the economic operator first knew or ought to have known that grounds for starting the proceedings had arisen.
(6) For the purposes of this regulation, proceedings are to be regarded as started when the...
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