UK: Procurement Case Law Update: Beware Of Getting What You Ask For

Last Updated: 5 September 2011
Article by Euan McSherry

The Decision of Lord Glennie in the case of Elekta Limited v The Common Services Agency (2011) CSOH 107 addresses some interesting aspects of public procurement challenges; challenges which appear to be on the increase following the late 2009 amendments to the Public Contracts (Scotland) Regulations 2006 ("the Regulations").

In terms of remedies, the major change to the previous Regulations is that there is no longer the need for a challenger to obtain an interim order to prevent a contract from being entered into. The procurement process will automatically be suspended as soon as proceedings challenging the contract award have been served on the contracting authority. The contracting authority must then apply to the court to set aside the automatic suspension.

Often the contracting authority will seek to have the suspensions set aside which is what happened in Elekta. Where there is a compelling case and a consideration of the parties' positions favours the unsuccessful bidder, the court should be persuaded to continue the automatic suspension until a substantive hearing. However, if the contracting authority succeeds in having the suspension lifted, the unsuccessful bidder is likely to have expended time and money only to see the contract being entered into with the successful bidder, will have an award of expenses made against them and will be left with an action for damages where their case, on the face of it, was not compelling. This is what appears to have occurred in the Elekta case.

In Elekta the Defender was the Common Services Agency ("CSA"), better known as NHS Scotland. The CSA is a contracting authority in terms of the Regulations. The estimated value of the contract was in the region of Ł21m which was above the relevant threshold. The CSA adopted the open procedure for seeking tenders from interested parties and an OJEU notice was advertised on 5 November 2010. The contract was for a range of radiotherapy equipment for five cancer centres within NHS Scotland which included a radiotherapy management system ("RMS"). Following the raising of proceedings CSA were automatically suspended from awarding the contract to the successful bidder. CSA applied to the court to set aside the suspension on the basis that there had not been a breach of the Regulations.

In brief, Elektra complained that, by making it a requirement of the tender that the equipment to be supplied must be compatible with the existing RMS – previously supplied by the successful bidder – and which, the Pursuer alleged, could only be supplied by the successful bidder, the terms of the invitation to tender ("ITT") made it impossible for any bidder other than the successful bidder to tender successfully. This was the case because it was a mandatory requirement of the ITT, or at least a requirement which heavily weighted in the scoring system so as to make it practically impossible to succeed unless the bidder complied with it, that the equipment supplied was to be compatible with the existing system.

Lord Glennie's Opinion referred to the findings in the European cases of Concordia Bus Finland Oy, Ab v Helsingen Kaupunki and EVN AG v Austria. The salient point taken from these cases was that the contracting authority must be entitled to decide what the subject matter of procurement is or, to put it another way, it must be entitled to decide on the functional requirements it wishes to satisfy. The fact that the criteria included in the ITT can only be satisfied by one bidder, or a limited range of bidders, does not of itself contravene the principle of equality. The inclusion of these criteria can only be considered discriminatory if they cannot be justified objectively have regard to the characteristics of the contract and the needs of the contracting authority. Provided that the contracting authority complies with the requirements of EC law, they are free, not only to choose the criteria for awarding the contract, but also to determine the weighting of such criteria, provided that the weighting enables an overall evaluation to be made of the criteria applied in order to identify the most economically advantageous bidder.

Elektra argued, among other points, that the contracting authority was under a strict duty to define its functional requirements in a way which enabled effective competition to take place and did not effectively reserve the contract to one supplier. Unfortunately for Elektra Lord Glennie rejected this submission and emphasised that it was for the Defender as the contracting authority to decide what it wants. Elektra did not seek to challenge the criteria adopted by CSA on the grounds that these were not objectively justifiable. Elektra did not put before the court details of the sort of tender that they would have made had they been allowed to tender on the basis of replacing the RMS.

The second complaint made by Elekta was about the stipulation that there should be a single provider of the equipment to the five centres. Lord Glennie dismissed this argument, with reference to the reasoning set out above, on the basis that it was up to the contracting authority to decide what its procurement requirements are and how to frame them.

Lord Glennie stated that, when considering whether to grant an interim order where the negative consequences of such an order are likely to outweigh the benefits, the Court should have regard to certain factors set out in the Regulations. He concluded that in the case of a body such as a health service, it must be in the public interest that, if the challenge has no reasonable chance of success, the procurement exercise should be allowed to go ahead without having to wait until the end of the challenge proceedings. The strength of the challenge was often a very important factor. If Elekta had shown a reasonable prospect of success, then Lord Glennie might have been inclined to refuse to grant the order. He would have had to have considered to the adequacy of damages, although not as a conclusive factor. He would also have had to consider the question of timing, for example, if there was a prospect of this matter going to a full evidential hearing, then possibly an appeal, before the proceedings were resolved. Lord Glennie also commented that he felt that there was some force in the points made by CSA that this was a procurement exercise which needed to be implemented straight away. Lord Glennie concluded that Elekta's case was a very weak one with no reasonable prospect of success and he granted an order setting aside the suspension from entering into the contract with the successful bidder.

While, in general, unsuccessful bidders may challenge a procurement process and have this suspended with relative ease, it is always advisable to ensure that the strength and weaknesses of the challenge has been properly considered prior to going into Court.

At Biggart Baillie our experienced procurement team provides specialist advice and practical support on dealing with challenges to procurement procedures and award decisions. Further our market leading expertise in non-contentious procurement law covers everything a client needs to deliver large and small scale public procurements without falling foul of the advertising and award procedures set down by the UK Regulations.

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.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.