Developments in Public Procurement Law - May 2022

Judgment on intelligence activities exemption in public procurement:
Excession Technologies Ltd v Police Digital Service

In this English High Court case the court considered the scope of the exemption contained in the Defence and Security Public Contracts Regulations 2011, which excludes from the application of the Regulations contracts for the "for the purposes of intelligence activities". A question arose as to whether a tender for IT services to support a covert surveillance operation fell within the wording of the exemption. The court held that the scope of the exemption was not limited to a contract that directly provided for intelligence activities but also extended to a contract where the object for performance was intelligence activities. As the IT services contract in question was integral to the surveillance operation in this instance the court concluded that the exemption applied.

The court also considered whether some aspects of the claim were time-barred. In particular, it discussed limitation in the context of the procurement where the contracting authority’s primary position was that the contract was not subject to any of the relevant procurement regulations but indicated that it would run a process that complied with them. Finally, the court reviewed the question of whether there was an implied “process” contract in relation to the competition.

Extending time limits in procurement cases:
Access for Living v London Borough of Lewisham

In this case the English High Court refused to allow an extension of time to issue proceedings alleging various breaches of the Public Contracts Regulations 2015 and struck out the claim. The proceedings had been issued two days late but before the agreed extended standstill period expired. The High Court held that this was not in itself a "good reason" under regulation 92 of the Public Contracts Regulations 2015 to allow for an extension of time and that the claimant's claim was time-barred despite its arguments that the local authority had failed to comply with the principles of transparency and equal treatment of economic operators under regulation 76(2).

The judgment confirms that the limitation period for bringing claims under the Public Contracts Regulations 2015 will only be extended in very limited circumstances and emphasises the need to obtain early advice when an issues arises in a procurement process.

Automatic suspensions and the availability of an expedited trial:
Kellogg Brown & Root Ltd v Mayor's Office For Policing And Crime

In this case the English High Court lifted an automatic suspension, imposed by regulation 95(1) of the Public Contracts Regulations 2015 on a successful tender pending a challenge to the procurement process. The court held that damages would be an adequate remedy for the claimant who was seeking to challenge the award of the contract but if the suspension was not lifted there was a risk that damages would not be an adequate remedy for the contracting authority.

The judgment provides important guidance on the evidence which must be provided to support arguments regarding the alleged inadequacy of damages and rejects the dicta in recent decisions that the availability of an expedited trial is a factor relevant to such arguments.

Policy, Guidance and Other Developments

New Policy Notes

The UK and Scottish Governments have recently published procurement policy notes covering a range of matters:

• SPPN 02/2022 on prompt payment in the supply chain.
• PPN 01/22 and SPPN 1/2022 on the procurement implications arising from the Ukraine Conflict.

UK Government publishes response to consultation on procurement law reform

The UK Cabinet Office published its response to its consultation on the 2020 green paper, “Transforming Public Procurement”. We have considered the response and provide our initial views on the proposed reforms in our HM Government Blog.

EU: Provisional agreement to promote reciprocity in access to international public procurement markets

The Council Presidency and the European Parliament have recently reached a provisional agreement on a draft regulation aimed at promoting reciprocity in access to international public procurement markets. The provisional agreement is subject to approval by the Council and the European Parliament before going through the formal adoption procedure.

Guidance on collaborative procurement to support building safety published

The UK Government has published a new guidance document, Collaborative procurement guidance for design and construction to support building safety. The guidance recommends procurement and contracting questions that should be addressed and highlights the advantage of two stage procurement to encourage the construction industry to deliver safer buildings.

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