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Public Procurement - Yet More on Development Agreements in Judicial Review

on Thursday, 06 April 2017.

In a recent decision, the High Court held that claimants did not have standing to bring a claim challenging a Council's decision to vary the terms of a development agreement for...

...a regeneration scheme in Farnham (Wylde and others v Waverley Borough Council [2017] EWHC 466 (Admin).

The Council varied the contract, reducing the amount payable by the developer to the Council for the land under development in order to ensure that the development was economically viable and could proceed. The claimants, who were a group of local councillors and members of the public, alleged that the variation to the agreement should have caused the council to hold a fresh competitive tendering process in line with the Public Contract Regulations 2006 (the Regulations) which applied at the time.

The Court held that the claimants lacked the required standing for the following reasons:

  • the claimants were unable to demonstrate that a fresh tendering exercise would have any direct impact upon them
  • there was no evidence that running a fresh competition for the regeneration scheme would produce a different result

Although the claimant's concerns were seemingly in the public interest, and the public interest is served by the aims of the Regulations, that is different from saying that any member of the public could have an interest in enforcing those Regulations.

The Court also said that although the Regulations provide specific remedies for breach of their provisions, they are reserved for 'economic operators', who are directly involved in competing for such contracts and are participating in the market for them. The claimants in this case were found not to be 'economic operators' and did not have standing for the purposes of procurement judicial review.

This decision is important for identifying the limitations of using judicial review to challenge public authorities procurement decisions and, in practice, suggests a reluctance from a public policy perspective to open the floodgates to members of the public in challenging public spending decisions.

For more information or if you have any procurement queries, please contact Stephanie Rickard in the Public Procurement team on 0117 314 5675.

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