HT-2023-000379 - [2024] EWHC 1201 (TCC)

THE PROCUREMENT CLAIM

The allegation of breach of contract, summarised above, that the Assist Contract was awarded without there having been a proper and impartial procurement process and that, whilst Assist was purportedly appointed pursuant to the Framework Agreement, it was in fact selected outside the terms of that agreement, is developed into a freestanding claim for a single breach of Regulation 33(7) of the PCR, at paragraph 6 of the Attachment to Claim Form, and paragraphs 22-24 of the Particulars of Claim.

It is common ground that the PCR apply to the award of the Assist Contract. Regulation 33 of the PCR concerns Procurement Framework agreements. Contracts “based on a framework agreement” must be awarded in accordance with the procedures laid down in the Regulation (Regulation 33(4)). Regulation 33(7) reads, so far as relevant, as follows:

The Claimant alleges that the Assist Contract was purportedly awarded pursuant to the Framework Agreement but was in fact outside the limits of that agreement.

Although the breach of contract and procurement claims are separate causes of action and may give rise to different heads of loss (compare paragraphs 21 and 24 of the Particulars of Claim), there is a considerable degree of overlap. For example, the alleged failure to conduct a proper and impartial procurement process, and the allegation that Assist was purportedly appointed pursuant to the Framework Agreement, but in fact selected outside the terms of that agreement (being allegations at the heart of the procurement claim), are also relied upon as constituting breaches of contract (see paragraph 12.3 above). Even if the procurement claim was itself time barred, the fundamental contention that the award to Assist was outside the Framework Agreement is part of the breach of contract claim, in respect of which there is no summary application.