How do the procurement law and judicial review regimes work together?

… Can judicial review be used as a remedy in procurement law claims?

In May 2012 we blogged on the case of R (on the application of Unison) v NHS Wiltshire Primary Care Trust which suggested that judicial review may still provide a remedy for some breaches of the rules relating to public procurement. There has been a lot more interest around judicial review as a possible remedy in procurement cases in recent times and it is worth noting that in its challenge to the decision of the Secretary of State for Transport over the West Coast main line, Virgin Trains’ primary focus was on judicial review proceedings rather than a claim under the Regulations, although both claims were issued.

The basis of Virgin’s application for judicial review was that the franchise was a services concession contract which is specifically excluded from the Regulations by Regulation 6(2)(m). This argument was based on the fact that the franchise operator was to be remunerated by income from fares rather than through payments made by the Secretary of State.

Although it was excluded from the scope of the Regulations it was argued that the contract was of cross-border interest and therefore subject to the general principles of EU law (such as transparency and non-discrimination) under the Treaty of the Functioning of the European Union. Accordingly the decision was susceptible to judicial review.

It is a shame (for procurement lawyers at least) that this point was never argued before the court by the heavyweight legal teams that the parties had assembled, but it does show that judicial review should continue to be considered as an alternative remedy especially as ECJ case law has given a very nuanced interpretation of the definition of a "services concession".

One other point of note on judicial review before we leave it again for the time being and that is the promise by the Coalition to combat "abuse" of the judicial review jurisdiction. Those proposals are currently out for consultation and it is worth noting that one of the suggestions in the consultation is that the time limits for procurement claims under judicial review should be brought in line with those in the Regulations.

One perceived advantage of judicial review is that actions must be started "promptly" but there is technically a long-stop of three months, as used to be the case under the Regulations. It is difficult to argue, however, that for procurement claims the time limit should not be standardised to 30 days as with claims under the Regulations. We anticipate that this consultation proposal will probably be implemented fairly quickly.