The Supreme Court has allowed 11 office equipment companies to add a legal challenge to the capacity of the Commissioners of Public Works to establish a multi-supplier procurement framework. It refused their request to add a claim for damages.
The ruling concerns amendments to a judicial review case, not the substance of the procurement challenge. The Court did not decide whether the Commissioners had authority to establish the framework, whether procurement rules were breached, or whether the original proceedings were issued in time. Those matters remained for the High Court.
The companies challenge a decision to limit suppliers in a framework agreement covering monochrome and colour printers and other multifunction devices for State agencies. The Supreme Court said the substantive High Court trial was scheduled for 10 December 2014 and directed that it should not be delayed.
The proposed capacity ground argued that the Commissioners lacked capacity to set up or enter the framework. The judgment said the companies’ solicitor had raised the issue in a letter to the respondent on 15 March 2013, before proceedings began, but it was omitted from the original statement of grounds through an error by the lawyers. The Court noted that the issue had also been argued in separate proceedings, although it was not determined in the written judgment in that case.
The Supreme Court said a late amendment in a public procurement case requires good reason, taking account of the public interest in swift resolution and the parties’ conduct. It found the capacity argument was principally a point of law, had been notified at the earliest opportunity and would not unfairly surprise the respondent, cause delay or prejudice it. The High Court had applied too strict a test by treating lack of knowledge of the ground as necessary.
The proposed damages claim was different. The companies said they had been wrongly shut out of profits, but the claim had not been raised in the initial letter or the statement of grounds and was not particularised there. The Court said no reason had been given for omitting it from the statement of grounds, and damages were not necessary to resolve the public procurement issue. It refused that amendment.
The companies were directed to provide an amended statement of grounds that day. The respondent was allowed four days from the judgment to file an amended notice of opposition and, if required, an affidavit. The ruling was delivered by Mr Justice Charleton on 7 November 2014.