COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr Justice Blofeld)
Friday, 13th July 2001
B e f o r e :
LORD JUSTICE DYSON
MR. JUSTICE ASTILL
|JOBSIN CO UK PLC|
|(trading as Internet Recruitment Solutions)|
|- v -|
|DEPARTMENT OF HEALTH|
of Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Telephone No: 0171-421 4040
Fax No: 0171-831 8838
Official Shorthand Writers to the Court)
MR. J. CROW (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.
Crown Copyright ©
"The obligation on a contracting authority to comply with the provisions of these Regulations other than regulations 8(6), 10(7), 21(8), 23(3) and 27, and with any enforceable Community obligation in respect of a public services contract (other than one excluded from the application of these Regulations by regulation 6 or 7), is a duty owed to services providers."
"A breach of the duty owed pursuant to paragraph (1) [or paragraph 1A] above shall not be a criminal offence but any breach of the duty shall be actionable by any services provider who, in consequence, suffers, or risks suffering, loss or damage."
"they are brought promptly and in any event within 3 months from the date when grounds for the bringing of the proceedings first arose unless the Court considers that there is good reason for extending the period within which proceedings may be brought."
The statutory material. The regulations.
"2(2) For the purposes of these regulations -
(a) 'a Part A services contract' is a contract under which services specified in Part A of Schedule 1 are to be provided;
(b) 'a Part B services contract' is a contract under which services specified in Part B of Schedule 1 are to be provided,
and, where services specified in both Parts A and B are to be provided under a single contract, then -
(i) the contract shall be treated as a Part A services contract if the value of the consideration attributable to the services specified in Part A is greater than that attributable to those specified in Part B; and
(ii) the contract shall be treated as a Part B services contract if the value of the consideration attributable to the services specified in Part B is equal to or greater than that attributable to those specified in Part A.
5(1): Whenever a contracting authority seeks offers in relation to a proposed Part A services contract other than one excluded by virtue of regulation 6 or 7, these Regulations apply in their entirety.
(2) Whenever a contracting authority seeks offers in relation to a proposed Part B services contract other than one excluded by virtue of regulation 6 or 7, Part 1 (General) and Part V11 (Applications to the court) apply but only the following provisions in Parts 11 to V1 apply -
regulation 8 (Technical specifications in contract documents)
regulation 22 (Contract award notices)
regulation 27(2) (Statistical and other reports)
regulation 28 (Responsibility for obtaining reports)
regulation 29 (Publication of notices).
21(1): Criteria for the award of a public services contract
Subject to paragraphs (5), (6) and (7) below, a contracting authority shall award a public services contract on the basis of the offer which -
(a) is the most economically advantageous to the contracting authority, or
(b) offers the lowest price.
(2) The criteria which a contracting authority may use to determine that an offer is the most economically advantageous include period for completion or delivery, quality, aesthetic and functional characteristics, technical merit, after sales service, technical assistance and price.
(3) Where a contracting authority intends to award a public services contract on the basis of the offer which is the most economically advantageous it shall state the criteria on which it intends to base its decision, where possible in descending order of importance, in the contract notice or in the contract documents."
The United Nations Provisional Central Product Classification Series MN077 of 1991 ("CPC").
"842 Software implementation services
All services involving consultancy services on, development and implementation of software. The term 'software' may be defined as the sets of instructions required to make computers work and communicate. A number of different programmes may be developed for specific applications (application software), and the customer may have a choice of using ready-made programmes off the shelf (packaged software), developing specific programmes for particular requirements (customized software) or using a combination of the two.
8421 84210 Software and software consulting services
Services of a general nature prior to the development of data processing systems and applications. It might be management services, project planning services, etc.
8422 84220 Systems analysis services
Analysis services include analysis of the clients' needs, defining functional specification, and setting up the team. Also involved are project management, technical coordination and integration and definition of the systems architecture.
8423 84230 Systems design services
Design services include technical solutions, with respect to methodology, quality-assurance, choice of equipment software packages or new technologies, etc.
8424 84240 Programming services
Programming services include the implementation phase, i.e. writing and debugging programmes, conducting tests, and editing documentation.
8425 84250 Systems maintenance services
Maintenance services include consulting and technical assistance services of software products in use, rewriting or changing existing programmes or systems, and maintaining up-to-date software documentation and manuals. Also included are specialist work, e.g. conversions.
843 Data processing services.
8431 84310 Input preparation services...
844 Database services ...
8491 84910 Data preparation services
Data preparation services for clients not involving data processing services.
8499 84990 Other computer services n.e.c.
Other computer related services, not elsewhere classified, e.g. training services for staff of clients, and other professional computer services."
"872 8720 Placement and supply services of personnel
87201 Executive search services
Services consisting in the search for, selection and referral of executive personnel for employment by others. Included in this category are services provided by senior administrators and managers whose functions generally include planning, organising, directing and controlling activities of private or public sector businesses through subordinate administrators. The services may be supplied to the potential employer or to the prospective employee and may involve the formulation of job descriptions, the screening and testing of applicants, the investigation of references, and other research.
87202 Placement services of office support personnel and other workers
Services consisting in selecting, referring and placing applicants in employment by others on a permanent or temporary basis, except executive search services. The services may be supplied to the potential employer or to the prospective employee and may involve the formulation of job descriptions, the screening and testing of applicants, the investigation of references, etc. Included are the placement of secretaries, clerks, receptionists, book-keepers, data entry operators, typists, word-processor operators, nurses, models, maids, ship crews, etc."
Services Directive 92/50/EEC.
"Contracts which have as their object services listed in Annex 1A shall be awarded in accordance with the provisions of Titles 111 to V1."
"Contracts which have as their object services listed in both Annexes 1A and 1B shall be awarded in accordance with the provisions ..."
The classification of the proposed contract.
The limitation point.
"Had the tendering process been conducted in accordance with the regulations, IRS would have been given clear criteria upon which they were to be judged. Equally they would have had the assurance that all the tenderers would be treated equally. If IRS proposal had been evaluated against the clear and proper criteria that are contained in regulation 21 of the regulations, there is every reason to believe that the proposal would not have been rejected in the apparently inexplicable way that it occurred. If the process is recommenced as it should be, this time in accordance with the regulations, then IRS will be afforded for the first time a proper opportunity to put its proposals before the DOH and to have them properly and fairly considered."
"Jobsin did not risk suffering loss or damage as a result of a breach of duty by the defendant until their exclusion from the contracting process was communicated to them on 17th November 2000."
"In breach of Regulations 14, 15, 16 and 21 of the Regulations, and the implied obligation on the Defendant under the Regulations to act fairly and even handedly (as set out in Commission v Denmark  ECR 1-3353), the Defendant:
(a) during November 2000 failed to afford the Claimant a fair or equivalent opportunity to present and discuss its tender with the Defendant;
(b) during November 2000 assessed, and on 22 November 2000 rejected, the claimant's tender on the basis of unpublished criteria which were not the criteria set out in Regulation 21(1) and (2), which were not fair and even handedly applied, and which were not grounds for exclusion of the Defendant under Regulations 14, 15 or 16."
Extension of time.
"I first asked myself if the claimant had a reasonable objective excuse for coming late. His excuse is that until he went to see his solicitors on 23rd November 2000 he had no idea that he could bring these proceedings. Should he have made such enquiries earlier? ... I have come to the conclusion that it would be unreasonable to expect him to do so in the circumstances. So I find that he has a reasonable objective excuse for bringing proceedings out of time. I ask myself what if any is the damage in terms of hardship or prejudice to third party rights. Here there is none because the court having ruled that this is a Class A Services Contract the Department has accepted that it will have to start again in any event. Consequently third party rights are not prejudiced by extending time. I next ask whether this exercise of my discretion would be detrimental to good administration by the DOH. Again having ruled this to be a Class A Services Contract I do not consider this applies. I also take into account that having ruled that this is a Class A Services Contract, on the main issue before the court the claimant has succeeded. Finally I bear in mind that the effective period of extension is from 14 November till 12 December, which is just under one calendar month. In these circumstances I would have exercised my discretion in the claimant's favour, even if the starting date was 14 August 2000."
"Even at this early stage IRS had concerns about the process."
"I began to have heightened concerns about the integrity of the FDOH tendering process."
"During the process it became clear that DOH was not following the regulations."