A recent public procurement case brings into focus the circumstances in which a declaration of ineffectiveness (DoI) remedy may be available under the Public Contracts Regulations 2015. The decision affirms the principles set out in Alstom and provides more certainty for contracting authorities and successful bidders as to the likelihood of a DoI being an available remedy should they face a procurement challenge after a contract has been entered into.
The Court of Appeal recently handed down its long-awaited judgment in Faraday Development Ltd v West Berkshire District Council. Overturning a fully reasoned first-instance judgment, the court deemed a development agreement containing contingent obligations on the developer to carry out development to be a 'public works contract' as defined in the public procurement rules. The decision has important potential ramifications for public and private development projects.
The courts have ruled that a successful tenderer which raises unreasonable objections to an application to vary a confidentiality ring in a public procurement dispute may be liable for the claimant's costs of the application, even though it's not a party to that dispute. The decision means that successful tenderers wanting to object to the use and adaptation of confidentiality rings in procurement challenges should consider carefully the extent to which they should raise objections.