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Supreme Court Rules on Public Sector Tendering Row

In a case of interest to anyone engaged in commerce with the public sector, a company which failed to win a contract for the provision of medical services in Scotland has failed to convince the Supreme Court that it was unfairly treated.

The company was the existing supplier of the services but was unsuccessful in a tender competition for a replacement contract. It argued that the tendering process was fundamentally flawed in that the criteria which had to be met were insufficiently clear and the reasons given for the rejection of its tender lacked detail.

The company’s complaint that the tendering process failed to comply with the Public Contracts (Scotland) Regulations 2006 was rejected by the courts in Scotland. The Outer and Inner Houses of the Court of Session ruled that the award criteria were compliant with EU law principles in that any reasonably well-informed and normally diligent tenderer would have interpreted them in the same way.

In dismissing the company’s appeal, the Court found that the correct legal test had been applied in assessing the clarity of the award criteria. In considering the adequacy of the reasons given to the company, the Scottish courts had correctly applied the approach laid down by the European Court of Justice.