Codified law in PCR 2015 aides application of PCR 2006

Posted by Cathrine Bryant on
The Supreme Court handed down judgement on 1 July 2015 in Edenred (UK Group) Limited and another v Her Majesty’s Treasury and others [2015] UKSC 45.

The case turned on whether a modification of a contract procured under the Public Contracts Regulations 2006 (PCR 2006) in fact amounted to the direct award of a valuable public contract without conducting a compliant procurement procedure.

Although the original contract was procured under PCR 2006, both parties referred the court to The Public Contracts Regulations 2015 (PCR 2015) and the parent Directive 2014/24/EU as updated statements of EU procurement law. Lord Hodge, presenting the unanimous judgement, confirmed that it is appropriate to “test the validity of the proposed amendment to the … contract by reference to the 2015 Regulations” (paragraph 30). The court went on to apply PCR 2015 to the proposed amendment using the 2014 Directive and existing case law to aid in their interpretation.

In our view this approach brings certainty to the vexed question of whether a modification of a contract is to be considered under PCR 2006 or PCR 2015. Regulation 72 of PCR 2015 is more flexible and advantageous to buyers, and also enables courts and practitioners to use the practical guidance on the application of the case law that has built up around modifications of contracts, and which is encapsulated in PCR 2015 and the 2014 Directive. The application of this guidance to procurements under PCR 2006 therefore seems eminently sensible!

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Cathy is a legal director in the firm's corporate team. As a dual qualified lawyer Cathy brings a depth of experience to her role as an adviser on tax matters in corporate transactions.

Cathrine Bryant
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