Standing to bring a procurement case

The High Court recently handed down its judgment in IGT v The Gambling Commission & Allwyn Entertainment, which concerned the definition of an “economic operator” and in particular, who has standing to pursue a claim against a contracting authority under The Concession Contracts Regulations 2016. The principles established in this case are also likely to apply equally to procurements proceeding via the Public Contracts Regulations 2015.

Following a preliminary hearing, the High Court held that the procurement legislation would only entitle those entities who would be seeking to obtain a public contract with a cause of action to bring a claim (that is bidders or potential bidders).

The case concerned an incumbent provider, Camelot, commencing Court proceedings against the Gambling Commission following the latter’s decision to award a new contract to Allwyn. IGT, Camelot’s sub-contractor, also commenced its own proceedings along similar grounds to those advanced by Camelot.

Following Allwyn purchasing Camelot, Camelot discontinued its claim against Allwyn; however, IGT continued with its claim alone. As a result, the Court had to determine, as a preliminary issue, whether IGT had standing (i.e. the legal right) to bring its challenge as a sub-contractor when it was not the primary bidder.

IGT was unsuccessful on this preliminary issue and the claim was accordingly dismissed. In particular, the Court noted the following:

On the wording of Article 1(3) of the Remedies Directive, an entity who did not seek to obtain the contract (i.e. a bidder) will generally not have the necessary standing to challenge the result of the procurement. That is the straightforward reading of the words…..

As a result of IGT having lost its challenge, it was required to pay some of the Gambling Commission’s costs; however, the situation was not as clear when it came to IGT having to pay Allwyn’s costs.

At a further hearing, the High Court held that the successful bidder, Allwyn, was entitled to recover its costs against IGT on the following basis:

Allwyn clearly had a separate interest justifying its participation and had participated substantively;
The value and public importance of the litigation was significant;
At an early stage, IGT had sought a costs order against Allwyn.

The High Court’s judgment re-affirms previous judgments and has confirmed that an economic operator has to be in it to win it when it comes to pursuing a procurement case against a contracting authority.

Blake Morgan has significant expertise in pursuing and defending contentious procurement matters. If you have any questions regarding this decision on standing to bring a procurement case or procurement law generally, or have any procurement issues, please get in touch with our experts who shall be pleased to help.