AJ & Anor v Calderdale Primary Care Trust

Regulation 4 of the Public Contracts Regulations 2006 requires equal, non-discriminatory and transparent treatment of tenderers. It does not, of itself, prohibit service users or carers from sitting on a tender evaluation panel. Their inclusion does not inevitably make the award criteria subjective or unlawfully applied.

A public authority’s decision based on that legal misconception may be quashed where the court cannot conclude that the same decision would inevitably have been reached without the error. The authority cannot replace the original reasoning during judicial review where the proposed new reasoning requires a materially different decision-making process.

The claimant, a profoundly disabled resident of supported accommodation, challenged the defendant local authority’s decision to exclude service users and family carers from evaluation panels for the procurement of supported living services. The authority relied on its understanding that their participation would breach, or expose the procurement to challenge under, regulation 4 of the Public Contracts Regulations 2006.

The claimant alleged error of law, failure to consider relevant policy, breach of legitimate expectation, failure to comply with the public sector equality duty and unlawful fettering of discretion. The central issue was whether the authority had acted on an erroneous understanding of procurement law and, if so, whether it could defend the decision by advancing a different rationale during the proceedings.

1. Regulation 4. Regulation 4(3) requires a contracting authority to treat economic operators equally and without discrimination, and to act transparently. The award criteria must be identified at the outset and applied objectively and uniformly. Nothing in regulation 4, the relevant European jurisprudence or domestic case law establishes that including service users or carers on an evaluation panel is, without more, unlawful. Nor does their presence inevitably prevent objective or uniform application of the criteria.
2. Error of law. Read as a whole and in context, the decision letter proceeded on the erroneous basis that the mere inclusion of service users or carers would breach procurement law or create a sufficient risk of challenge. The authority could not demonstrate that it would inevitably have reached the same decision without that error. The decision was therefore unlawful.
3. Re-categorisation of the decision. The authority could not substitute, in the proceedings, a different rationale based on the risk that panel members might be influenced by extraneous matters. That rationale would require a separate assessment of the relevant guidance, the equality impact assessment, the likelihood and manageability of the risk, and whether safeguards short of systemic exclusion were adequate. A fresh decision would require new and detailed reasons.
4. The court distinguished R v SSHD ex parte Turgut [2001] 1 All ER 719 and treated the reception of a later decision in existing proceedings as discretionary and context-dependent, as illustrated by R (O) v The LB of Hammersmith [2011] EWCA Civ 925. The proper course was to address the decision actually challenged.
5. The decision was quashed. The remaining grounds were not determined. The court made no final ruling on the social-care guidance or the public sector equality duty. Legitimate expectation would not, in any event, have assisted absent a specific undertaking to maintain the former policy and, although not decisive, there was no demonstrated detrimental reliance.

First-instance judicial review proceedings. The decision of the local authority was quashed.