The High Court has ruled that the scope to bring a judicial review claim under the public procurement rules is limited to economic operators and/or those who can show that the adherence to the competitive tendering process might have led to a different outcome that would have a direct impact on them.
The case of Wylde & Ors v Waverley Borough Council [2017] related to a regeneration scheme in Farnham. Two borough councillors and three members of local civic societies were opposed to the development proposals and sought to challenge a decision by Waverley Council to vary the development agreement with Crest Nicholson by reducing the land value to make the scheme viable. The claimants argued that Waverley had failed to comply with the public procurement rules and should have held a fresh competition for the award of the public contract. The Council did not believe that the variation was such that it changed the character of the contract so as to demonstrate an intention between the parties to re-negotiate the essential terms of the contract thereby triggering the need for a fresh procurement exercise.
In any event Waverley Council and Crest Nicholson argued that the claimants lacked the necessary standing to bring a judicial review claim as set out by the Court of Appeal in R (Chandler) v SoS for Children Schools and Families [2010].
Refusing to grant the application for judicial review, Mr Justice Dove held that the claimants failed to show that they had standing to bring the claim. Not only would they have difficulty proving that any competitive tendering exercise for the varied contract would have produced a different outcome but more importantly, they could not show that there would have been a direct impact on them as a result.
Mr Justice Dove said that "Not only are they not economic operators, but they are not remotely approximate to any economic operator, nor could they begin to demonstrate any interest in the procurement process which might be akin to or a proxy for status as an economic operator."
He concluded that, "their interest as either council tax or rate payers or as members of local authorities, are not sufficient to establish that they were within the Chandler test and thus they do not have standing to bring this claim.”
This case highlights that not all interested parties will be able to enforce the procurement regulations. This case confirms that it is entirely consistent with the purpose of the legislation to restrict standing to bring claims for judicial review to economic operators and/or to those who could show that compliance with the competitive tendering process might have led to a different outcome, which would have had a direct impact on them.
The case is also in line with the general shift that we are increasingly seeing in the courts (especially the Planning Court) in respect of challenges attempting to stall redevelopment proposals. Cases such as R (Faraday Development Limited) v West Berkshire Council and anor [2016] and Whitstable Society v Canterbury City Council [2017] highlight that the courts are prepared to take a strong stance in such cases and if necessary, exercise judicial discretion and pragmatism even where there have been technical breaches of relevant requirements.
All of which is good news for those developers whose schemes encounter significant local opposition. The case assists in the narrowing down of one avenue of legal challenge and helps alleviate previous judicial inconsistency in this area. It is also a clear demonstration of the likely future direction of the courts post Brexit with a reduction in emphasis in cases centred on technical issues thus providing more certainty and confidence for the development community and local authorities to proceed with important regeneration projects.
