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Enforcement firm JBW Group has lost an appeal against the Ministry of Justice (MoJ) over the way it conducted a tender process in which large contracts were awarded to the firm’s competitors.Lord Justice Elias and Lord Justice Kitchin dismissedicon JBW’s appeal against a High Court judgement which ruled that the MoJ had not breached the Public Contract Regulations 2006 (the Regulations).
JBW issued proceedings against the MoJ in 2009, after losing out on three contracts in a tender for bailifficon services to be provided to magistrates courts in particular regions of England and Wales.
The firm alleged the MoJ had breached the Regulations by leaking information and assisting a rival biddericon.
It also alleged there was an implied contract that the MoJ would consider tenders fairly and transparently in accordance with the terms of the tender invitation, and that the terms of this contract had been breached.
But High Court judge Master Victoria McCloud dismissed the claims, arguing that the contract agreements issued by the MoJ were “service concession contracts” and not “public service contracts”.
Service concession contracts are specifically excluded from the scope of the Regulations, and the Master also ruled that a contract could not be implied in the manner alleged by JBW.
The firm’s subsequent appeal hinged on whether the contract agreements were service concessions or public service contracts.
The MoJ asserted the contracts were a concession, as payments for the bailifficon service were made by third party defaulters, with the risk of non-payment transferred from the MoJ to the contractor.
This is in contrast to a public services contract, where the provider is remunerated directly by the contracting authority.
The point of law in question also dealt with the level of risk undertaken by the provider. In this instance, the court asserted that where the provider was remunerated exclusively by a third party, the transfer by the contracting authority of a “very limited” operating risk was enough to classify the contract as a service concession, negating the Regulations.
On the point of the implied contract, Lord Justice Elias contended that JBW’s counsel was using the implied term as a means of expanding the reach of EU law, a move the Justice said was not legitimate.
Jamie Waller, JBW’s chief executive, said: “We sought clarification from the courts, the response to which we received stating that the procurement of bailifficon services do not fall within the public service contract regulations. On receipt of this information we decided not to continue with our complaint.
“Our relationship with the MOJ has remained strong during this time of clarification and we are pleased with the professional manner in which we were treated and able to conclude our original concerns.”
FULL JUDGEMENT HERE :
http://www.bailii.org/ew/cases/EWCA/Civ/2012/8.html
Enforcement firm JBW Group has lost an appeal against the Ministry of Justice (MoJ) over the way it conducted a tender process in which large contracts were awarded to the firm’s competitors.Lord Justice Elias and Lord Justice Kitchin dismissedicon JBW’s appeal against a High Court judgement which ruled that the MoJ had not breached the Public Contract Regulations 2006 (the Regulations).
JBW issued proceedings against the MoJ in 2009, after losing out on three contracts in a tender for bailifficon services to be provided to magistrates courts in particular regions of England and Wales.
The firm alleged the MoJ had breached the Regulations by leaking information and assisting a rival biddericon.
It also alleged there was an implied contract that the MoJ would consider tenders fairly and transparently in accordance with the terms of the tender invitation, and that the terms of this contract had been breached.
But High Court judge Master Victoria McCloud dismissed the claims, arguing that the contract agreements issued by the MoJ were “service concession contracts” and not “public service contracts”.
Service concession contracts are specifically excluded from the scope of the Regulations, and the Master also ruled that a contract could not be implied in the manner alleged by JBW.
The firm’s subsequent appeal hinged on whether the contract agreements were service concessions or public service contracts.
The MoJ asserted the contracts were a concession, as payments for the bailifficon service were made by third party defaulters, with the risk of non-payment transferred from the MoJ to the contractor.
This is in contrast to a public services contract, where the provider is remunerated directly by the contracting authority.
The point of law in question also dealt with the level of risk undertaken by the provider. In this instance, the court asserted that where the provider was remunerated exclusively by a third party, the transfer by the contracting authority of a “very limited” operating risk was enough to classify the contract as a service concession, negating the Regulations.
On the point of the implied contract, Lord Justice Elias contended that JBW’s counsel was using the implied term as a means of expanding the reach of EU law, a move the Justice said was not legitimate.
Jamie Waller, JBW’s chief executive, said: “We sought clarification from the courts, the response to which we received stating that the procurement of bailifficon services do not fall within the public service contract regulations. On receipt of this information we decided not to continue with our complaint.
“Our relationship with the MOJ has remained strong during this time of clarification and we are pleased with the professional manner in which we were treated and able to conclude our original concerns.”
FULL JUDGEMENT HERE :
http://www.bailii.org/ew/cases/EWCA/Civ/2012/8.html
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