Scottish Case Law Developments

Contracting authorities and bidders should take note of the following procurement law points brought out in the recent cases of Hastings & Co (Insolvency) Limited v The Accountant in Bankruptcy and Healthcare at Home Limited v The Common Services Agency:

Notification before action - In Hastings, the judgment notes that the notification of intent to bring proceedings should contain the substantive points on which the decision to award is challenged. In this case, legal arguments raised during proceedings which had not been included in the notification letter were struck out by the court. Time limits on action - If a would-be tenderer has problems with the clarity of Invitation to Tender (ITT) documents, these problems should be raised at the time of reading the ITT and not held over to await feedback in any debriefing document. This issue only played a minor role in Hastings but it attracted comment from the court and the lesson is worth noting. ITT Clarity/Transparency - Healthcare at Home established that "the legal test applied by the Scottish Courts on clarity is whether the hypothetical, reasonably well-informed and normally diligent tenderer should be able to see what matters require answers from the tender criteria". Providing a summary of bids' "relative characteristics and advantages" - In Hastings, the court saw no legal issue with information taking the form of comments from individual scorers. Approach to "balance of convenience"...