Does a Council’s Procurement Stand Scrutiny?
The England and Wales High Court produces judgements that are of great interest to procurement specialists. We are prompted to produce this briefing note after reading Newlyn Plc v London Borough of Waltham Forest (2016) EWH C 771 (TCC). Our comments below are not aimed at Waltham Forest who were the ‘winners’ in this case. Newlyn Plc offer enforcement agency services. What emerged from the case was the fact that these services are not within the scope of the public contract regulations 2015, but that is another story.
There was an issue around ‘The page limit’ provision in the ITT. Waltham Forest wanted information on three areas and limited the response to one side of A4 pages font size Arial 11. Newlyn provided three pages but then an additional nineteen pages. The judge commented that “They (the council) required one sheet of paper for each of the three areas; they were entitled to have regard to one sheet of paper for each of these areas. Accordingly, in my view, this allegation is hopeless.” Waltham Forest ignored Newlyn’s nineteen pages. In a more general sense, what disturbs us is the page/character count restrictions imposed by councils. Often there is no regard for what it takes to provide a full answer!
Waltham Forest requested (as many councils do) three references. Newlyn pleaded that Waltham Forest were obliged to take up the references and failed to do so. The judge commented “In my experience, it is not uncommon for a tender evaluation to be based on the identities of the references provided, rather than the actual taking up of those references personally…. It does not seem to me that any arguable case as to rationality has been made out.” This begs a much wider implication. Given this ruling councils are excused from carrying out due diligence. This works against SMEs who may not have readily identifiable references. Is the potential basis for future High Court actions?
