Introduction

The case of Amey Highways Ltd v. West Sussex County Council ([2019] EWHC 1291 (TCC)) presents a significant examination of the boundaries within which a public authority may abandon a procurement process under the Public Contract Regulations 2015 (PCR). Amey Highways Ltd (hereafter "Amey") challenged the West Sussex County Council (hereafter "the Council") after the Council awarded a highways maintenance contract to Ringway Infrastructure Services Ltd ("Ringway") based on marginal scoring differences. Amey alleged procedural flaws in the procurement process, asserting that its score should have exceeded Ringway's, thus entitling it to the contract. Following an unsuccessful application to strike out critical parts of Amey's case and an unsuccessful request for summary judgment, the Council opted to terminate the procurement process entirely. This move aimed to nullify any ongoing claims Amey might have had. The judgment explores whether such an abandonment was lawful under the PCR and examines its implications on Amey’s potential claims for damages.

Summary of the Judgment

The High Court, presided over by the Technology & Construction Court, meticulously analyzed the actions of West Sussex County Council in abandoning the "Highways Term Service Contract 2018-2028" procurement process. The Council initially awarded the contract to Ringway by a narrow margin, prompting Amey to challenge the decision, alleging scoring inaccuracies. After the first application to strike out Amey's claims was dismissed, the Council decided to terminate the procurement process in hopes of mitigating further legal challenges.

The Court consolidated two sets of proceedings to assess whether the Council's decision to abandon the procurement was manifestly erroneous and contrary to the PCR. The primary issues revolved around whether the abandonment was intended to supersede Amey’s claims and whether it breached principles of equal treatment and transparency.

Upon detailed examination, the Court concluded that the Council did not act manifestly erroneously. The abandonment was deemed rational, considering factors such as potential litigation costs, service continuity, and the absence of certainty in prevailing Amey’s claims. Importantly, the Court found that the abandonment of the procurement did not affect Amey’s accrued cause of action, provided Amey could substantiate its claim that its score should have been higher.

Analysis

Precedents Cited

The judgment referenced several key cases to contextualize the Council’s actions:

• Energy Solutions v Nuclear Decommissioning Authority [2017]: Affirmed that claims for damages under PCR are best regarded as breaches of statutory duty, subject to Frankovich conditions.
• R (Chandler) v Secretary of State for Children, Schools and Families [2009]: Clarified that breaches of the PCR could give rise to both public and private law remedies.
• Embassy Limousines & Services v. European Parliament [1999]: Established that contracting authorities have broad discretion and are not liable for not awarding contracts unless specific misconduct is proven.
• Kauppatalo Hansel v. Imatran Kaupunki [2003]: Recognized the authority’s power to abandon procurements if errors make it impossible to accept the economically advantageous tender.
• Apcoa Parking (UK) Ltd v City of Westminster [2010] and Woods Building Services v Milton Keynes Council [2015]: Illustrated the limits of public law remedies in procurement abandonment scenarios.

These precedents collectively underscored the wide discretion afforded to contracting authorities under the PCR, particularly regarding the termination of procurement processes.

Legal Reasoning

The Court’s reasoning hinged on several core principles:

• Broad Discretion of Contracting Authorities: The PCR grants authorities substantial latitude in managing procurement processes, including the ability to abandon them when deemed expedient.
• Manifest Error and Rationality: For a decision to be overturned, it must constitute a manifest error or be irrational. The Court found no such error in the Council’s decision to abandon the procurement, as it considered multiple factors like litigation risks, financial implications, and service continuity.
• Accrued Cause of Action: The decision to abandon the procurement did not negate any established cause of action that Amey might have accrued before the abandonment.
• Distinction Between Public and Private Law Remedies: The Court clarified that a breach under PCR can concurrently involve public law aspects (subject to judicial review) and private law claims (for damages), and abandoning a procurement does not automatically nullify existing private law claims.

The Court carefully differentiated the act of abandoning the procurement from any intent to suppress or nullify existing claims, emphasizing that the decision was a strategic response to mitigating broader risks rather than a discriminatory action against Amey.

Impact

This judgment has profound implications for public procurement processes:

• Affirmation of Authority Discretion: Contracting authorities possess wide-ranging discretion to manage procurement processes, including the right to abandon them without undue interference.
• Separation of Remedies: The decision clarifies that abandonment does not inherently negate ongoing private law claims, preserving the right of economic operators to seek damages for breaches prior to abandonment.
• Guidance on Transparency and Equal Treatment: By upholding the Council’s decision, the judgment reinforces that as long as actions are rational and non-discriminatory, they comply with PCR obligations.

Future cases will likely reference this judgment when assessing the legitimacy of procurement abandonment and the preservation of claims arising prior to such decisions.

Complex Concepts Simplified

Conclusion

The judgment in Amey Highways Ltd v. West Sussex County Council serves as a pivotal reference for the operation of the PCR in public procurement contexts. It upholds the broad discretion granted to contracting authorities to manage and, when necessary, abandon procurement processes without incurring liability for not awarding contracts, provided such decisions are rational and non-discriminatory. Crucially, the Court delineates that the abandonment of a procurement does not inherently invalidate or extinguish existing accrued causes of action for breaches that occurred prior to the termination. This ensures that economic operators retain the ability to seek redress for legitimate grievances, maintaining a balance between administrative flexibility and accountability under the law. Moving forward, this decision will guide both contracting authorities and bidders in understanding the legal boundaries and remedies available within public procurement frameworks.