Wylde & Ors v Waverley Borough Council

In a procurement judicial review brought by a non-economic operator, standing depends on the purpose and structure of the procurement regime. A claimant must show that a competitive tendering process might have produced a different outcome having a direct impact on the claimant. Genuine public concern, council-taxpayer status, local residence, or membership of a local authority is insufficient without more. The test is narrower than standing in ordinary judicial review because the Public Contracts Regulations 2006 focus on economic operators and provide them with a bespoke remedies regime. Judicial review is not thereby excluded in principle, but that alternative issue was left undecided.

The claimants sought judicial review of Waverley Borough Council’s decision to vary a development agreement with the interested party concerning the Brightwells or East Street redevelopment scheme in Farnham. The challenge alleged non-compliance with public procurement law. Permission had been granted, but a preliminary trial was ordered on standing.

The agreement was accepted to be a public works concession contract under the Public Contracts Regulations 2006. The claimants were council-tax payers, local residents, members of civic societies, and in some cases councillors. They opposed the scheme and sought a further competition. The central issue was whether their interests satisfied the procurement-specific standing test.

1. Claim dismissed. The claimants lacked standing to bring the judicial review. It was therefore unnecessary to decide whether judicial review was excluded by the bespoke remedies in the Public Contracts Regulations 2006.
2. Standing must be assessed in the legal and factual context. Relevant matters include the statutory purpose, the claimant’s relationship with the relevant duties, the strength of the claim, and any direct effect on the claimant. Motive is relevant principally where the claim is pursued out of ill-will or for an improper purpose.
3. In procurement cases, the statutory and European framework is directed towards open and transparent competition for public contracts and remedies for economic operators directly involved in that market. A non-economic operator must therefore show that a competitive tendering procedure might have led to a different outcome having a direct impact on the claimant. This is narrower than the ordinary public-law standing test.
4. The claimants’ genuine concerns about the scheme, council-taxpayer and ratepayer status, local interests, civic activities, and local-authority membership did not establish the required direct impact. They were not economic operators or sufficiently proximate to one, and could not show that a competition would produce a different outcome affecting them. The VEAT Notice also disclosed no competing economic interest.
5. The approach in Gottlieb was not followed. The court held that Chandler turned on the distance between the claimant’s interests and the purpose of the procurement regime, rather than on ulterior motive alone. The claimant in Gottlieb would also have failed the Chandler test.