Amey Highways Ltd v West Sussex County Council

A contracting authority has a broad discretion to abandon a procurement before contract award. That discretion does not, without clear statutory authority, cogent policy justification or binding precedent, extinguish an economic operator’s accrued cause of action for breach of procurement duties.

A damages claim under the Public Contract Regulations 2015 is essentially a private law claim for breach of statutory duty, although the same conduct may also engage public law remedies. Withdrawal may prevent future liabilities from accruing, but it does not cancel liabilities already accrued. A decision to abandon remains subject to review for manifest error, equal treatment and transparency.

Amey challenged the Council’s procurement of a highways term services contract, alleging errors in the evaluation of its tender. The Council initially intended to award the contract to Ringway. After the court refused to strike out Amey’s claim, the Council abandoned the procurement and began a fresh process, hoping that abandonment would end Amey’s claim.

The two proceedings were consolidated. The preliminary trial concerned the lawfulness and effect of the abandonment decision, including whether it extinguished any accrued claim by Amey and whether the decision breached procurement principles. The central issue was whether abandonment could deprive Amey of a cause of action which had accrued before 2 August 2018.

1. Effect of abandonment. The Council’s abandonment decision did not affect Amey’s First Action if Amey could prove that it had an accrued cause of action before 2 August 2018. An accrued cause of action is fundamentally different from an inchoate claim and may constitute property or an asset with present value. The Public Contract Regulations 2015 contained no express or implied provision cancelling such a claim.
2. Nature of the claim. A damages claim under the PCR is best regarded as a private law claim for breach of statutory duty, subject to the Francovich conditions. The same conduct may also be susceptible to public law review, but withdrawal of the public law decision does not necessarily remove an accrued private law damages claim.
3. Discretion to abandon. The Council had a broad discretion to abandon the procurement and was not required to carry the award process to completion. Lawful abandonment could prevent future causes of action from accruing, including where continuing the process would otherwise expose the authority to liability. It did not, however, authorise cancellation of an accrued cause of action without clear statutory sanction, cogent policy justification or binding authority.
4. Loss and causation. If Amey proved that its score should have exceeded 85.51, it would have established the factual basis for an award of the contract and suffered loss or damage when the contract would have begun. Loss of the profitable contract, or alternatively loss of a significant chance of obtaining it, was capable of completing the cause of action.
5. Lawfulness of the decision. Manifest error was broadly equivalent to Wednesbury unreasonableness. The Council’s decision was rational because it balanced litigation risk, potential costs, service disruption, the need to secure winter highways services and the possibility of a better reprocurement. It did not breach equal treatment because all bidders were equally subject to the risk of rational abandonment. The reasons given were sufficiently transparent.
6. Orders. Issues 1–4 were answered in the negative. The Council would not have abandoned the procurement in any event on a lawful basis. Amey’s damages claim in the First Action could proceed. No declaratory or other relief was granted.