Australia: English case law offers insights to Australian government agencies preparing for the Government Procurement (Judicial Review) Act 2018 (Cth)

Last Updated: 26 November 2018
Article by Catherine Whitby

The Public Contracts Regulations 2015 (UK) (PC Regulations) grants tenderers from the United Kingdom and selected other countries the right to challenge the procurement decisions of English, Welsh and Northern Irish government agencies. As the remedies available to tenderers under the PC Regulations are broadly similar to available to tenderers in Australia under the Government Procurement (Judicial Review) Act 2018 (Cth) (GPJRA), English PC Regulations case law offers Australian Government agencies useful insights into areas of future potential procurement challenge.

The GPJRA will, from no later than April 2019, give tenderers the right to:

  • make a complaint to the accountable authority (ie Secretary or Board) of an Australian Government (Commonwealth) agency about an alleged contravention of the rules set out Division 2 of the Commonwealth Procurement Rules (CPR) (ie the covered procurement rules); and if not resolved,
  • apply to the Federal Court (or Federal Circuit Court) for:
    • the grant of an injunction; and/or
    • an order for compensation for a Commonwealth agency's contravention of those rules.

In this article, the first in a series, we examine the recent English decision, Lancashire Care NHS Foundation Trust & Ors v Lancashire County Council 1 (Lancashire Case). The Lancashire Case serves as a reminder that, even with well-drafted documentation, a procurement can be derailed, and successfully challenged, as a result of what goes on in the evaluation room.

Lancashire Care NHS Foundation Trust & Ors v Lancashire County Council

The Lancashire Case concerned a tender process by Lancashire County Council (Council) for the provision of community nursing services for children and young adults. The total value of the procurement was £104 million.

The Applicants, the Lancashire NHS Foundation Trust and the Blackpool Teaching Hospital NHS Foundation Trusts, were the incumbent providers of community nursing services to the Council. The Applicants were runners up in the tender process, having lost by two points to Virgin Care Services Limited (Virgin).

The Applicants argued that the Council's decision to award the tender to Virgin was in breach of the PC Regulations, insofar as it failed to meet the required standards of transparency, non-discrimination and equal treatment. The Applicants alleged, among other things, that the Council's evaluation departed from the process set out in both the tender and in the evaluation instructions provided to evaluation panel members.

The court agreed. Aspects of the evaluation causing the court particular concern included:

  • As with many tenders, evaluation was first undertaken by each member of the evaluation panel on an individual basis, with the panel then convened to moderate and agree on a consensus score. While the evaluation panel reached a consensus on the score to be awarded for each evaluation criterion (Combined Score), the panel did not attempt to articulate its combined reasoning for awarding the Combined Score, instead listing a range of positive and negative points about the tenderer's response. As a consequence, the court found that there was "not necessarily or even probably congruity of reasoning" as between evaluation panel members in relation to the Combined Score awarded. In the court's opinion, it was likely that each evaluation panel member had a different reason for agreeing to award that Combined Score.
  • The evaluation panel did not appear, during the moderation session, to have applied a consistent approach to the discussion of each tenderer's response. This made it difficult for the court to determine whether each evaluation sub-criterion had been considered for each tenderer during the evaluation.
  • The evaluation instructions were not followed. The evaluation instructions provided to the evaluation panel stated that the Chairperson would "ensure all evaluation documents, including all evaluation comments, justifications, marks and amendments are fully documented and agreed by both the panel members and the Chairperson". This did not occur, meaning that there was nothing to confirm that the scores recorded in the moderation documentation reflected the scores agreed.

Insights for Commonwealth agencies

To reduce their potential exposure to risk under GPJRA, Commonwealth agencies undertaking covered procurements should focus not only on ensuring that their approach to market and evaluation documentation is clear and conforms with the CPRs, but also on preparing for evaluation. The focus should be on the procedural aspects of evaluation, and on its human factors – that is, on the tender evaluation team charged with following the procedure developed and set out in the evaluation plan.

Agencies should consider:

The proposed composition of the tender evaluation team

Tender evaluation teams sometimes comprise stakeholders with an interest in the outcome of the procurement, but with little experience of the procurement process. The Lancashire tender evaluation panel, for example, comprised a number of health service staff members with limited exposure to procurement. This may have contributed to the deficiencies in the evaluation identified by the court. Ideally, all tender evaluation team members should have some understanding of both the broader process in which they are involved; the role of the evaluation team; and their role as a member of that team.

Where there are variations in evaluation team members' experience, agencies can address these by:

  • appointing an experienced Chair to lead the tender evaluation team;
  • providing training to less experienced team evaluation team members prior to the commencement of the evaluation; and/or
  • having a legal or probity adviser attend the evaluation as an observer to answer process-related questions as they arise.

Tender evaluation team dynamics

Interpersonal factors (eg friendship or hostility between team members) may impact on extent to which an evaluation team follows (or is capable of following) the process described in the evaluation plan. Differences in communication styles can also play a part in the successful or failure of the evaluation – an experienced Chair should be able to ensure that all team members have the opportunity to discuss their views in a respectful and tolerant manner. The evaluation plan should clearly identify the role played by members of the evaluation team, with the Chair's role similarly identified. The Chair should have the power to escalate conflicts, so that if these arise among evaluation team members, they can be managed.


1[2018] EWHC 1589 (TCC) 22 June 2018

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Catherine Whitby
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions