HT-2024-000271 - [2024] EWHC 3039 (TCC)

Fecha: 13-Nov-2024

The Conflicts Challenge: the Law

The Conflicts Challenge: the Law

46.

As set out above, and as discussed further below, RHH’s challenge is based firstly upon an alleged conflict concerning a former employee of OGL, Ms Nicklin.

47.

Conflicts of interest are dealt with by Regulation 24 of the 2015 Regulations:

(1)

Contracting authorities shall take appropriate measures to effectively prevent, identify and remedy conflicts of interest arising in the conduct of procurement procedures so as to avoid any distortion of competition and to ensure equal treatment of all economic operators.

(2)

For the purposes of paragraph (1), the concept of conflicts of interest shall cover at least any situation where the relevant staff members have, directly or indirectly, a financial, economic or other personal interest which might be perceived to compromise their impartiality and independence in the context of the procurement procedure.

(3)

In paragraph (2)-

“relevant staff members” means staff members of the contracting authority, or of a procurement service provider acting on behalf of the contracting authority, who are involved in the conduct of the procurement procedure or may influence the outcome of that procedure; and “procurement service provider” means a public or private body which offers ancillary purchasing activities on the market.

48.

Pursuant to Regulation 57(8)(e) of the 2015 Regulations, contracting authorities may exclude from participation in a procurement procedure any economic operator where a conflict of interest within the meaning of Regulation 24 cannot be effectively remedied by other, less intrusive, measures.

49.

O’Farrell J provided relevant guidance on conflicts of interest in procurement cases in Siemens Mobility Ltd v High Speed Two (HS2) Ltd [2023] EWHC 2768 (TCC)at [747] to [754]. In particular: (Footnote: ⁴)

(1)

The Regulations impose an obligation on the contracting authority to investigate, identify and remedy any conflicts of interest (at [748]).

(2)

The reference in the Regulations to any interest which might be perceived to compromise the impartiality and independence of those involved in the procurement raises the test of the fair-minded and informed observer by analogy with the test for apparent bias at common law (at [749]).

(3)

The common law test for apparent bias, as formulated by the House of Lords in Porter v Magill [2002] 2 AC 357 at [102]-[103], is as follows:

The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased.