High Court clarifies the application of deadlines and the principle of proportionality in public procurement procedures

12 May 2009

In J B Leadbitter & Co Limited v Devon County Council [2009] EWHC 930 (Ch), the High Court confirmed the right of public contracting authorities subject to the Public Contracts Regulations strictly to apply time limits imposed for the receipt of compliant tenders. In this important decision, Mr Justice Richards held that, provided rules regarding compliant tenders have been drawn and applied in ways which are transparent, ensure equal and non-discriminatory treatment and which are proportionate, contracting authorities are entitled to insist on strict compliance.

Mr Justice Richards, considering the application of the principle of proportionality to the terms of a procurement process, held that the general EU law principle of proportionality is capable of applying in these circumstances, so that a court will intervene if the decision of the contracting authority is unjustifiable. According to Mr Justice Richards, this is the proper meaning of “manifest error” in this context, a term used by the courts in several previous decisions, including Lion Apparel Systems Ltd v Firebuy Ltd [2007] EWHC 2179 (Ch). Only in extreme circumstances, however, such as fault on the part of the contracting authority, will the application of the principle of proportionality require contracting authorities to consider tenders received after the deadline.

Michael Bowsher QC, Elisa holmes and Ligia Ospeciu represented Devon County Council.

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Michael Bowsher QC
Elisa Holmes