In Developing Assets (UK) Limited (t/a Helioperations) v West Yorkshire Combined Authority HT-2023-000047, the High Court (Joanna Smith J) was once again required to consider the vexed question of the exercise of discretion and the principle of proportionality in the context of the evaluation of late tender responses.
The Claimant, Helioperations, fully uploaded its final bid to the electronic portal used to conduct the competition before the submission deadline expired, but did not manage to press a ‘submit response’ button before the portal automatically ‘locked’. The Authority excluded Helioperations from further participation, on the basis that the relevant competition rules provided no power to evaluate a ‘late’ bid in these circumstances. Helioperations challenged this decision, contending that the Authority had: (i) misdirected itself in respect of its powers under the competition rules, and (ii) failed to have regard to the residual power to evaluate late bids conferred under EU law and the principle of proportionality.
On 2 March 2023, Eyre J ordered that the claim should be determined at an expedited trial. At conclusion of the first day of oral argument, Helioperations indicated that based on the parties’ opening oral submissions it would apply for summary judgment. Following a short adjournment, the Authority confirmed that it was conceding the proceedings, and agreed that its decision to exclude Helioperations must be set aside and that it would pay Helioperations’ costs.
The case is a useful reminder that while the Court will afford reasoned evaluative judgments of contracting authorities respect, it may be much readier to intervene if a public body has failed lawfully to direct itself to, and apply, its powers.
Joseph Barrett of 11KBW was sole counsel for the successful Claimant, Helioperations (instructed by Fran Mussellwhite of Bevan Brittan). The Authority was represented by Philip Moser KC and Jonathan Lewis of Monckton Chambers (instructed by Mills & Reeve).
