Serco Ltd v Secretary of State for Defence

Where procurement proceedings are governed by a statutory notice requirement, the claimant must identify the actual alleged breach by reference to the applicable regulations. Detailed particulars of every evaluation complaint are not necessarily required at the pre-action stage. The adequacy of notice must be assessed against the information made available by the contracting authority. An authority which has provided insufficient information cannot ordinarily rely on resulting lack of specificity to defeat the claim. The strike-out and summary-judgment tests, although expressed differently, involve no material difference in this context.

Serco challenged the Ministry of Defence’s procurement of fire prevention, protection and response services. The contract notice was published before the Public Contracts Regulations 2015 came into force. Serco’s pre-action correspondence alleged breaches of the Defence and Security Public Contracts Regulations 2011 and referred to aspects of the evaluation, but did not identify every challenged numbered requirement. The Ministry applied to strike out the parts of the claim relying on the 2015 Regulations and the further complaints said not to have been sufficiently notified.

1. Applicable regulatory regime. The procurement was commenced when the contract notice was sent to the OJEU in October 2014. The Public Contracts Regulations 2015 came into force on 26 February 2015 and, by Regulations 1 and 118(1), did not apply to contract award procedures commenced before that date. The pleaded claim under the 2015 Regulations therefore had no prospect of success and was struck out.
2. Applicable procedural tests. The test under CPR 3.4(2)(a), namely whether the statement of case discloses no reasonable grounds, and the test under CPR Part 24.2, namely whether there is no real prospect of success, were materially the same for this application.
3. Sufficiency of notice. Regulation 52(3) of the Defence and Security Public Contracts Regulations 2011 required particulars of breach to be identified in the pre-action correspondence. The authorities, as summarised and adopted from Amaryllis Limited v HM Treasury sued as OGC Buying Solutions [2009] EWHC 962 (TCC), established that a general reference to breach was insufficient, but detailed or lengthy particulars were unnecessary. What was required was a clear statement of the alleged breach by reference to the Regulations and an intention to commence proceedings.
4. The first and second pre-action letters identified the applicable Regulations, challenged the evaluation process as a whole, identified numerous numbered requirements, and sought further information. The Ministry’s disclosure was limited and supplied records only for some identified requirements. In those circumstances, it would be wrong at this stage to hold that complaints concerning other numbered requirements lacked reasonable grounds or had no real prospect of success. The second limb of the application was dismissed.