Judgment
Mr Justice David Richards :
Introduction
In this action J B Leadbitter & Co Limited claims that its tender has been wrongly excluded from a procurement process being undertaken by the defendant Devon County Council (Devon CC) on behalf of public bodies in the South West of England.
The claimant is a member of a substantial group of construction companies. The group has an annual turnover of nearly £350m and with long experience of public sector contracts which form the major part of its business.
The procurement process in issue relates to a 4–year framework agreement under which construction projects may be procured by local authorities and other public bodies in the South West. The framework agreement, and sometimes the consortium of public bodies promoting it, is referred to as Construction Framework South West (CFSW). The anticipated start date for the framework agreement is 1 June 2009. Devon CC is acting on behalf of the participating bodies, including itself, in the procurement and administration of the framework agreement. The number of contractors to be chosen to participate in the framework agreement is not fixed but is anticipated to be about 12. Inclusion in the framework does not guarantee the award of any contract nor does it provide exclusivity to the participants, but in practice it is likely to enhance the prospects of business with participating public bodies. The tender process is detailed and complex, and the tenderers, which include many of the best-known national construction companies, have been prepared to devote considerable time and expense to the preparation of their tenders.
The relevant legal framework to the tender process is provided by The Public Contracts Regulations 2006 (SI 2006 No 5) ( the Regulations ) implementing Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the co-ordination of procedures for the award of public works contracts, public supply contracts and public service contracts (the Directive).
Devon CC’s contract notice was published in the supplement to the Official Journal of the European Union on 24 July 2008, inviting expressions of interest. 25 contractors, including the claimant, were subsequently invited to tender. The Invitation to Tender (ITT) was issued on 26 November 2008. It specified 12 noon on 16 January 2009 as the fixed deadline for the submission of tenders. The ITT required tenders to be supplied electronically to a secure portal. In fact,
