Following its earlier judgment concluding that Milton Keynes Council’s tender evaluation relating to the award of a £10 million, 4-year, single supplier framework agreement was unlawful ([2015] EWHC 2011 (TCC)) (“the liability judgment”). The High Court has now issued a further judgment dealing with the issue of remedy (“the remedy judgment”).
Coulson J held that the effect of liability judgment was that the successful claimant, Woods, should have received the highest aggregate score in the procurement by a very significant margin. The Judge held that it followed that the Court should:
(a) order that the Council’s contract award decision be set aside,
(b) order that the Council amend its records to reflect the lawful tender evaluation scores, as found in the Court’s judgment, and
(c) declare that Woods had submitted the most economically advantageous tender.
Critically, Coulson J accepted Woods’ submission that EU law (Article 47 of the EU Charter of Fundamental Rights, the general Treaty principle of effectiveness and the Remedies Directive) required that the Court must order a remedy that “ensured substantial compliance with” EU procurement law (§4). The Judge therefore rejected the Council’s submission that the appropriate remedy was simply to set aside the contract award decision, and to refrain from ordering the Council to award the contract to Woods and/or pay substantial damages (§§15-16).
As to whether the appropriate remedy was: (a) a mandatory order for the award of the contract, or (b) damages, the Court held (on the facts) that damages were the most appropriate remedy. Coulson J reasoned that this conclusion was supported by five considerations: (i) a mandatory order was not specifically claimed in the particulars of claim, (ii) the PCR 2006 do not specifically provide for mandatory orders, (iii) a mandatory order would raise a number of potential issues regarding policing and enforcement, (iv) the Court had found the procurement to be unlawful, and it was inappropriate for such a process to lead directly to a contract award, and (v) in light of the Court’s conclusion that Woods had submitted the most economically advantageous tender, damages would be an adequate remedy.
Notably, the Judge expressed the view that a mandatory order requiring that a successful claimant under the PCR 2006 must be awarded a public contract would be an “exceptional” remedy, albeit that he did not rule out that such an order might be appropriate (and necessary) in a suitable case (§11).
The Judge therefore ordered that damages must be assessed.
This is the first ever decision in which an English Court has held that a contract award decision must be set aside pursuant to the PCR 2006 and/or analysed what remedy a successful claimant in such a claim is entitled to as a matter of EU and English domestic law.
A copy of the liability judgment can be found here and a copy of the remedy judgment can be found here.
Joseph Barrett of 11KBW was sole counsel for the successful Claimant, Woods.
