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Alert!
High Court decision leaves open possibility of procurement challenges by trade unions

Date:
30 Mar 2012
 

On 15 March, the High Court considered an application for judicial review by the trade union, Unison, in relation to an outsourcing contract awarded by the NHS. While the High Court rejected Unison's application, it did so only on the facts of the case and did not exclude the possibility of trade unions successfully bringing an action for judicial review of procurement decisions.

Facts

Unison issued its application for judicial review of a decision by ten primary care trusts (PCT) to outsource their Family Health Services to NHS Shared Business Services. Unison was challenging the decision to award the outsourcing contract without carrying out a regulated procurement procedure under the Public Contracts Regulations 2006. As it would not have been a bidder in any regulated procurement procedure, it could not challenge under the Regulations, but instead sought a judicial review of the PCTs' decision.

Judgment

Mr Justice Eady accepted that "one can envisage circumstances in which a breach of the Regulations could so affect the members of a union that the law should afford a remedy in public law". Such a remedy may be available when a union could "show that performance of the competitive tendering procedure might have led to a different outcome that would have a direct impact on it or its members."

In this instance, Mr Justice Eady concluded that Unison had not been able to show what might have happened if a procurement had been carried out under the Regulations - there were no known candidates that might have bid and no indication of what the contract terms might have been. Furthermore, he concluded that Unison's bid was time barred - the time for a challenge began to run when the PCTs had announced that they had made a decision to proceed to contract, rather than when the contracts themselves were entered into.

However, the decision could have wide ranging impact given Mr Justice Eady's express acceptance that there are, on principle, circumstances in which a trade union could seek judicial review of a decision which breaches the Regulations.

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