Unison, R (on the application of) & Anor v NHS Shared Business Services Ltd & Anor

A breach of the Public Contract Regulations 2006 may, in appropriate circumstances, support public law remedies as well as the statutory remedies available to economic operators. A claimant who is not an economic operator must nevertheless show a sufficient interest by evidence that compliance with the procurement regime might have produced a different outcome with a direct impact on the claimant or its members. The possibility must relate to the particular facts and cannot rest on speculation. In procurement judicial review, grounds may arise before the contract is signed where a public authority has made a final decision to proceed with a particular contracting party, unless that decision is genuinely conditional. Delay is assessed by reference to promptitude, the factual point at which grounds first arise, and the prejudice or detriment identified in section 31(6) of the Senior Courts Act 1981.

Unison sought judicial review of ten primary care trusts’ decisions to enter into arrangements with NHS Shared Business Services Ltd for the outsourcing of family health services. It alleged breaches of the Public Contract Regulations 2006. The threshold issues were whether such breaches could sound in public law, whether Unison had standing despite not being an economic operator, and whether the claim had been brought promptly.

The court considered the chronology of the proposed outsourcing, including the PCTs’ decisions, their binding instructions to proceed, and the commencement of proceedings on 19 December 2011. The central questions were whether Unison could demonstrate a sufficient interest and when the grounds for judicial review first arose.

1. Public law remedy. A breach of the Public Contract Regulations 2006 may give rise to public law remedies in appropriate circumstances. The existence of statutory civil remedies for economic operators under regulation 47 does not exclude judicial review.
2. Standing. The claimant had to satisfy the criteria identified by the Court of Appeal in R (Chandler) v Secretary of State for Children, Schools and Families [2010] LGR 1. It had to provide evidence, related to the particular procurement, showing that compliance might have led to a different outcome with a direct impact on Unison or its members. No identifiable alternative bidders or possible alternative terms were established. The suggested impact was therefore speculative, and Unison had not shown a sufficient interest. The court did not characterise Unison as a busybody.
3. Delay. Procurement duties arise at an early stage, and a claimant cannot select only the final breach while ignoring earlier substantive breaches. However, a tentative or conditional step does not necessarily start time running. A positive decision to proceed with a particular contracting party is itself a breach for judicial review purposes unless genuinely conditional. By September 2011 the PCTs had made final decisions to proceed, and the instructions to proceed signed between 27 October and 2 November created binding contractual obligations. These arrangements went beyond a mere apprehension of a future breach.
4. The claim was not brought with sufficient promptitude. The three-month period had expired before proceedings began for at least five defendants. The delay also engaged section 31(6) of the Senior Courts Act 1981: granting permission at the eleventh hour would cause substantial practical difficulties and would be detrimental to good administration.

Not stated in the judgment.