International Game Technology PLC & Ors v The Gambling Commission

Standing to challenge a procurement award generally belongs to an unsuccessful bidder with an interest in obtaining the contract itself. Sub-contractors, sub-sub-contractors and suppliers ordinarily have no such standing. A non-bidder may qualify only in an exceptional case, such as where discriminatory tender requirements made bidding impossible, and the challenge must be made promptly.

Where domestic regulations implement EU procurement remedies, they should be interpreted purposively and consistently with EU law unless deliberate expansion is demonstrated. The definition of “economic operator” in the Concession Contracts Regulations 2016 did not widen standing beyond the relevant candidates and tenderers. The GPA did not cover this lottery-services concession.

The claimants challenged the award of the Fourth National Lottery Licence to Allwyn Entertainment Ltd. None of the IGT claimants submitted a bid. Some were proposed key sub-contractors to Camelot UK Lotteries Ltd, an unsuccessful bidder; one was a proposed sub-sub-contractor; and another had pre-qualified but withdrew before submitting a tender.

The judgment concerned a preliminary issue ordered by O’Farrell J. It addressed whether the claimants were entitled to bring proceedings under the Concession Contracts Regulations 2016, whether the domestic regulations had widened the EU-law position, whether the claimants were “economic operators”, and whether the GPA applied to the United States claimant.

1. Standing. The preliminary issue was determined in favour of the Gambling Commission and Allwyn. None of the IGT claimants had standing to challenge the procurement award. The claim therefore could not proceed, with consequential matters to be dealt with separately.
2. EU-law position. Article 1(3) of the Remedies Directive concerned a person having an interest in obtaining the particular contract, not merely an interest in the procurement’s outcome or in supplying a bidder. The ordinary position was therefore confined to unsuccessful bidders. Grossmann Air Service Bedarfsluftfahrunternehmen GmBH & Co v Austria (Case C-230/02) and Amt Azienda Trasporti e Mobilita v ATPL Liguria (Case C-328-17) recognised only a narrow exception where discriminatory tender requirements made a tender impossible or pointless. Any such challenge had to be brought at the appropriate early stage.
3. Domestic implementation. Applying Brent LBC v Risk Management Partners Limited [2011] UKSC 7 and EnergySolutions v Nuclear Decommissioning Authority [2017] UKSC 34, the court held that the CCR16 had to be construed purposively against the EU-law background. The explanatory material showed no intention to gold-plate the remedies regime or enlarge standing. The definition of “economic operator” therefore had to be read consistently with the Remedies Directive.
4. Independent domestic construction. Even without EU law, “offers” referred to an offer to the contracting authority, “services” referred to the services being procured as a whole, and “on the market” did not include every entity supplying a component part. Regulations 47 and 48, concerning notices and standstill, and regulation 42, treating subcontractors separately, confirmed that wider interpretation was unworkable.
5. Application. C1 was a parent company which offered no relevant services. C3 and C5 were subcontractors. C4 withdrew before tendering and did not fall within the Grossmann exception. C6 was a sub-sub-contractor. None was an economic operator owed the relevant duty.
6. GPA. The alternative argument concerning C3 also failed. The procurement was for lottery services through a services concession. The GPA schedules did not cover lottery services or services concessions, so regulation 51 imposed no duty towards C3.

No appeal was involved. The preliminary issue had been ordered by O’Farrell J at a case management conference on 3–4 May 2023.