Gamesa Energy UK Ltd., R (on the application of) v The National Assembly for Wales

A tendering or pre-qualification process conducted by a public body is amenable to judicial review only where the challenged decision has a sufficient public law element, assessed by reference to the subject matter of the decision and the nature of the alleged breach. Statutory powers, public expenditure and the disposal of public land are relevant starting points, but do not by themselves make the detailed execution of a commercial tender reviewable.

A challenge based on irrationality or unfairness to the marking of individual bids will ordinarily fall outside public law where the process was conducted in good faith, applied equally and concerned criteria chosen to achieve legitimate procurement aims. Such challenges may be possible in rare circumstances, but this case was not one of them.

Gamesa Energy UK Ltd challenged the first-stage pre-qualification process for options to lease forestry land for wind-farm development. The process was operated by the Forestry Commissioners under arrangements with the National Assembly for Wales. Gamesa alleged irrationality, unfairness and breach of legitimate expectation in the assessment and marking of its questionnaire, and separately challenged the two-stage structure and the absence of a stated short-list number.

The court conducted a full merits hearing after the permission issue had been listed. The central issue was whether the challenged aspects of the tendering process had a sufficient public law element to be amenable to judicial review.

1. Amenability. The claim was dismissed because the challenged matters were not amenable to judicial review. The relevant question was whether the decision had a sufficient public law element, having regard to the subject matter of the decision and the nature of the attack upon it. The public status of the decision-maker and the absence of a private law remedy were relevant, but not determinative.
2. Statutory and public context. The Government of Wales Act 1998 and the Forestry Act 1967 supplied the statutory authority for the land-disposal arrangements. The Assembly remained responsible for the arrangements and had to obtain the best reasonable value for money consistent with a proper purpose. Those features created public elements, but did not convert every aspect of the resulting commercial pre-qualification exercise into a public law decision.
3. Application to the tender. The Commissioners were not required by statute to use the particular pre-qualification process. The stated aims were legitimate and were not challenged. The questionnaire, scoring system and explanations were applied equally to all bidders. Gamesa’s complaint concerned the competence and execution of parts of the marking exercise, rather than fraud, corruption, bad faith, an unlawful policy or failure to comply with a statutory procedure. In that context, a challenge based on irrationality and unfairness did not engage sufficient public law considerations. The possibility of judicial review of tendering or pre-qualification decisions on irrationality grounds was not excluded in every case, but such cases would be rare.
4. Orders. Permission was granted on grounds 1 to 3 because it was arguable that parts of the questionnaire had been organised and marked irrationally. The substantive claim was nevertheless dismissed for want of amenability. Ground 4, concerning the two-tier process and the absence of a fixed short-list number, was unarguable and permission was refused. The claimant was ordered to pay the defendants’ costs. Leave to appeal was refused, with 21 days allowed for any application or related procedural steps.