Frozen conditions and procurement regulations – can you just let it go?

The wintry weather we are currently experiencing poses many challenges for local authorities and other public bodies, including ensuring that they are as prepared as possible to address unpredictable weather-related problems. The procurement obligations of public bodies will most likely still apply in relation to winter-related supplies and it is notoriously difficult to rely on the "extreme urgency" exception in the procurement regulations which allows a public body to award a contract without some form of competition.

The Scottish Court of Session considered what constitutes "extreme urgency" in late 2014 in the Nationwide Gritting Services case. This case related to the purchase of de-icing salt, without competition, by the Scottish Ministers over two particularly harsh Scottish winters. A challenge was made by a supplier of such salt who had not been asked to supply any of the salt which the Scottish Ministers had purchased without holding a competition. The Court found that the criteria for the application of the "extreme urgency" exception were not satisfied in respect of one of the winters in question.

The Court did not find in favour of the supplier who had raised the challenge, however, as that supplier had failed to prove that they had suffered any loss as a result of the Scottish Ministers' actions. In particular, they had failed to prove that they would have submitted a tender and that if they had submitted a tender, that tender would have been successful, especially as the supplier had failed to lead evidence as to the prices at which it and its competitors would have tendered.

This decision illustrates again how difficult it can be for aggrieved suppliers to prove causation and loss. With aggrieved suppliers being increasingly willing to resort to litigation, and in light of the range of remedies available to them under the procurement regulations, the decision should serve as a timely reminder to public bodies that they should exercise considerable caution before relying on the "extreme urgency" exception.

Jill is an Associate with Harper Macleod LLP and can be contacted at jill.fryer@harpermacleod.co.uk.