His Honour Judge Keyser QC has handed down judgment today (16 November 2021) in Adferiad Recovery v Aneurin Bevan University Health Board [2021] EWHC 3049 (TCC). The Claimant had been unsuccessful in a tender process commenced by the Defendant in March 2021 to award a contract for a mental health sanctuary service.  The Claimant sued for damages (among other remedies) for alleged breaches of the Public Contracts Regulations 2015, of general principles of EU law and of an implied contract (or “tender process contract”). The claim challenged a decision of a Welsh public body, so had to be brought in Wales (CPR 7.1A).

The Defendant applied for summary judgment and/or strike out of the claim, on the grounds (1) that the procurement was for a below-threshold contract, so that no action could be brought under the Public Contracts Regulations 2015; (2) that no action could be brought in post-Brexit domestic law for breach of EU general principles on the award of below-threshold contracts; and (3) that no tender process contract arose on the facts.

HHJ Keyser QC allowed the Defendant’s application on all grounds and therefore dismissed the claim.

Among other things, the judgment:

  • addresses in detail the interpretation of the Common Procurement Vocabulary (or “CPV”) contained in Regulation (EC) No. 2195/2002 – including the relevance of the CPV’s “tree structure” and the correct approach to classifying services for which there is no specific code. The judge accepted the Defendant’s argument that the services in question were “social and other specific services listed in Schedule 3” to the 2015 Regulations (commonly known as “light touch” services), with the consequence that a higher financial threshold applied;
  • establishes that bidders can no longer sue in England and Wales for breach of general principles of EU law governing the award of below-threshold contracts, for a number of reasons including because actions for breach of EU general principles are precluded by Schedule 1 to the European Union (Withdrawal) Act 2018; and
  • confirms that a “tender process contract” will only be implied where there is an “objectively demonstrated intention to undertake the contractual obligations relied on – and not where the contracting authority expressly states in the procurement documentation that it does not intend for such a contract to arise.

Jorren Knibbe of No5 Barristers’ Chambers represented the successful Defendant. Information about Jorren’s practice is available here.