Search

How can we help?

Icon

Public procurement: what does cross-border interest mean?

We are often consulted by clients wishing to challenge the outcome of tenders which are not governed by the Public Contracts Regulations 2015, Concession Contracts Regulations 2016 or Utilities Contracts Regulations 2016, usually because the value of the tender is not high enough to meet the financial thresholds over which the Regulations apply. It is sometimes still possible to challenge the outcome of a below-threshold tender, if it can be shown that there was, or would have been, cross-border interest in the contract. In that case, general EU Treaty principles of transparency, proportionality and non-discrimination will still apply to the conduct of the tender, and a procurement challenge may be possible if it can be shown that the public body has breached one of these principles.

But what does cross-border interest actually mean and how can it be demonstrated? This is one of the issues the court looked at in the recent case of Ocean Outdoor UK Limited v London Borough of Hammersmith and Fulham. The claim concerned the grant of two leases of advertising space on the Hammersmith flyover. The unsuccessful bidder, having failed in its argument that the Concession Contracts Regulations 2016 applied to the contract in question, said that nonetheless general Treaty principles applied to the tender and had been breached.

It is sometimes still possible to challenge the outcome of a below-threshold tender, if it can be shown that there was, or would have been, cross-border interest in the contract.

The court said that the test is an objective one: would the realistic hypothetical European bidder have bid for the contract had the opportunity arisen? In this case, it found there was insufficient cross-border interest. Although advertising is a global industry and the location of the space – on a major route into London – was capable of attracting international interest, the land was located in London and the Council was an English local authority. The Council had in fact sent messages regarding the opportunity to a number of potential bidders who were located outside of the UK, and none of them expressed any interest or submitted a bid. As such, the court determined that there was no evidence that a realistic hypothetical bidder would have bid for the leases, and the tender was not subject to general EU Treaty principles.

Although the outcome of below-threshold contracts can be challenged in appropriate cases, this decision underlines the need for genuine evidence of cross-border interest in a contract before the courts will allow a challenge based on general EU principles to proceed.

About this article

Disclaimer
This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full General Notices on our website.

About this article

Read, listen and watch our latest insights

art
  • 12 June 2024
  • Privacy and Data Protection

UK data protection: Important basics

Sometimes, data protection can seem like unhelpful red tape. At other times, it is critical to cultivating a trustworthy reputation.

art
  • 11 June 2024
  • Immigration

UK Immigration Roundup – May to June 2024

As the UK approaches the upcoming general election, immigration remains a focal issue in political discussions. The Conservative party’s recent proposal to cap visas for skilled migrant workers has alarmed various industries who are concerned that a limit to migration could harm vital sectors of the UK economy.

Pub
  • 06 June 2024
  • Employment

Talking Employment Law: What does the new Worker Protection Act 2023 mean for employers?

In this podcast, Lucy Densham Brown and Shauna Jones, members of the employment team, will review the new Worker Protection Act 2023 and provide some guidance on how employers should review their policies in preparation for October.

art
  • 03 June 2024
  • Commercial Real Estate

Sustainability and commercial property: green leases  

Climate change is considered by many the biggest threat we are facing today. With the UK said to have one of the oldest housing/building stocks, the focus on a building’s environmental performance and sustainability has never been more critical.

art
  • 03 June 2024
  • Employment

Using AI technologies in recruitment: is it fair and transparent?

In a rapidly evolving digital landscape, where artificial intelligence (AI) plays an increasingly pivotal role in HR and recruitment processes, ensuring responsible and ethical implementation is paramount.

Pub
  • 03 June 2024
  • Employment

Navigating the Labour Party’s New Deal for Working People: Legal implications and opportunities

Join Monica Atwal and Amanda Glover, for this in-person seminar on ‘Navigating the Labour Party’s New Deal for Working People: Legal Implications and Opportunities’ at our Reading office on Thursday, 20th June.