Public Procurement: Council successfully lifts prohibition on awarding contract for homelessness services
14 January 2013
Glasgow Rent Deposit & Support Scheme v Glasgow City Council & another  CSOH 199 concerned a challenge to a procurement exercise for homelessness services. Glasgow City Council (the “Council”) succeeded in an application, under Regulation 47(10) of the Public Contracts (Scotland) Regulations 2006 (the “2006 Regulations”), for an interim order bringing to an end the prohibition on entering into the contract for homelessness services.
The Council sought tenders for a service to provide increased access to a range of temporary and permanent private rented properties throughout Glasgow for households that are assessed as homeless. The pursuer was a charity that aimed to alleviate the needs of homeless people in Glasgow. The pursuer submitted a tender bid but was not awarded the contract.
The pursuer alleged breaches of the 2006 Regulations and the principles of equal treatment, non-discrimination, transparency and proportionality.
One aspect of the pursuer’s challenge concerned the adequacy of the reasons provided by the Council for the “quality” scores awarded to the pursuer’s bid. Lord Malcolm stressed that in respect of matters involving judgment and assessment of rival bids, the Court should not disturb the authority’s decision except in cases of manifest error. His Lordship stated, at paragraph 15 of the opinion, that the ground of challenge was “...a classic example of the kind of challenge which will not be entertained” by the Courts. Lord Malcolm stated that:
“A conviction that errors or misjudgements have occurred will often be held by unsuccessful bidders. It is important that it is understood that this will not justify an allegation of a breach of the 2006 Regulations...” (Paragraph 15).
Lord Malcolm also held that there must be some materiality in any alleged errors in the procurement process. In the present case, the pursuer contended that it should have been awarded full marks for the “price” element of its bid. However, even if it had been awarded full marks, it would still have achieved a lower score than the successful tenderer. Lord Malcolm held that there was no merit in this ground of challenge.
In relation to balance of convenience, Lord Malcolm noted that the purpose of the proposed contract is to improve the Council’s provision of homelessness services to vulnerable people. Any continuation of the prohibition on the contract award would have had a severe impact on the services that the Council was able to provide over the winter period. It would also impact on the Council’s ability to meet its statutory obligations in relation to homelessness services.
Lord Malcolm concluded that the pursuer had no prima facie case and that the balance of convenience favoured the granting of the order sought by the Council.
John MacGregor, of Axiom Advocates, acted for Glasgow City Council. Morag Ross, also of Axiom Advocates, acted for the Pursuer.
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