Citation: EWCA Civ 103
Nature of case:
The Appellant was a specialist provider of community care services based in Northamptonshire, who in 2010 bid in a competitive tender for the award of community care legal services contracts in 125 geographical service areas of England and Wales.
She did so even though it was a requirement of the competition that the bidder would at least have a part-time office in each area where services were to be delivered. In the end, all of the Appellant’s bids were rejected by the Commission because she had not provided the information necessary to establish eligibility for a contract. At first instance, Blake J dismissed the Appellant’s application for judicial review of the Respondent’s decision, and on 25 July 2012 the Court of Appeal heard arguments to determine whether to grant the Appellant permission to appeal against the order made by Blake J.
The Court of Appeal, with all in agreement, refused permission to appeal on the basis of three points:
- Stanley Burton LJ upheld Blake J’s first instance decision that ‘it was reasonable and proportionate for the defendant to reject the claimant’s tender for Northamptonshire made as it was as part of a great many other bids containing in fact the same information’ because the fundamental defect in the Appellant’s applications arose from the fact that she misunderstood the basis of the tender.
- The Commission should not have sought clarification or amendment of the tender under Article 148(3) of the Implementing Regulation because the defects in the Appellant’s applications were not due to their ambiguity. The Appellant needed to withdraw her applications and to submit a new application, for the procurement area in which she had her office.
- The Appellant was unable to establish the first requirement of her case that the Commission acted in breach of its duty to treat her application in the same way as it had treated others.
