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Excession Technologies Ltd sued the Police Digital Service (PDS). PDS ran a procurement to deliver a national network of surveillance operation rooms. Excession, one of the bidders, claimed that the PDS should have rejected another bid for being “abnormally low” and claimed there were errors made in the scoring of bids contrary to The Defence and Security Public Contract Regulations 2011. The claim was dismissed by the Technology and Construction Court.

Read on for a summary of the case’s main questions and what the judgment means for you.

The key issues discussed in the judgment There was a two-day court hearing in August 2021, followed by written submissions in November/December 2021, resulting in judgment on 25 February 2022. Mrs Justice O’Farrell DBE considered three main questions.

1.) Was the PDS entitled to rely on the exclusion in Regulation 7(1)(b) which says the Regulations do not apply “for the purpose of intelligence activities”? In the judgment on 25 February 2022, the Court said “yes”; the PDS can rely on Regulation 7(1)(b). The words “for the purposes of” extends also to projects whose object is intelligence.

2.) Was part of the claim time-barred due to the requirements of Regulation 53, namely that proceedings are started within 30 days from when the economic operator first knew or ought to have known of the grounds for challenge? The Regulations don’t apply here but, if they did, the Court needs to consider:

the relevant breaches; the date on which they occurred; and
the date on which Excession had knowledge of the facts which apparently and clearly indicated (though need not absolutely prove) an infringement. Excession was time-barred on claims based on duties owed, the abnormally low tender and the failure to provide sufficient and proper information on pricing. The court does have discretion to extend the 30 day period but the Judge decided that there was no good reason for the delay between the alleged breach and issuing proceedings.

The claims made on manifest error in the marking of the tenders were brought within 30 days so would not have been time-barred.

3.) Was the procurement governed by an alleged implied contract between Excession and PDS? It’s a well-established legal principle that contracts can be implied through tender conduct, but this wasn’t the case here. The obligation under implied contract is to consider bids in good faith. The implied contract cannot provide detailed terms about the basis upon which bids should be evaluated.

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Source: Capsticks

Date: 12 April

Posted in News on Apr 12, 2022

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