Menai Collect Ltd & Anor, R (on the application of) v Department for Constitutional Affairs & Anor

A public body's decision to award a commercial contract is not generally amenable to judicial review merely because the body exercises statutory powers or performs an important public function. The court must identify the decision challenged and the alleged duty or obligation said to make it a matter of public law. Statutory underpinning is insufficient unless the statute imposes the obligation alleged to have been breached. Review may nevertheless be available for a genuine public law wrong, such as fraud, corruption, bad faith or implementation of an unlawful policy. A court will not re-mark commercial tenders or second-guess an evaluative judgment absent a proper public law basis.

The claimants challenged the Department for Constitutional Affairs’ decision to award a contract for magistrates’ court enforcement services in the Wales and Cheshire Region to the interested party. They alleged that the Project Board had been misled by omissions concerning local managers’ views and comparative performance statistics, and by the regional representative’s statement that the Region was comfortable with the evaluation outcome.

The Department contended that the procurement was an essentially commercial process, that the additional information had been considered and found immaterial, and that the decision was not amenable to judicial review. The central issues were whether the contract award contained a sufficient public law element and whether the evaluation process involved a reviewable failure to consider relevant information, material mistake or procedural unfairness.

1. The application was dismissed. The decision to award the contract was not reviewable merely because the Defendant was a public body exercising the contracting power in Courts Act 2003, section 2(4). The court had to identify both the decision and the alleged public law duty or obligation said to have been breached.
2. The authorities, including Mercury Energy Ltd v Electricity Corporation of New Zealand, [1994] 1 WLR 521, Hibbit, and Mass Energy Ltd v Birmingham City Council, [1994] Env LR 298, showed that judicial review could arise in commercial contracting where there was a genuine public law element, such as fraud, corruption, bad faith, breach of statutory tendering requirements or implementation of an unlawful policy. The fact that a contract concerned coercive or important public functions did not itself supply that element.
3. The complaints about omitted information did not establish a public law breach. The Panel members who received the additional local and external information were entitled, within the published evaluation criteria, to conclude that it did not justify changing the scores. The Defendant’s choice of objective evaluation criteria and its treatment of information obtained outside that process were matters for the Defendant.
4. The statement that the Region was comfortable with the decision was not materially inaccurate. The regional representative was entitled to state the Region’s concluded view, notwithstanding differing views among subordinate managers.
5. The European Union principles relied on in argument added no separate basis for review because the specific rules were accepted not to be in play. Nor was it appropriate for the court to re-mark the tenders or second-guess the Panel’s commercial judgment, which the court lacked the material and expertise to reassess.