In recent years, consultations have highlighted that too little is known about the number of public procurement disputes that are brought by means of judicial review. To date, approaches towards understanding the numbers of such has not been evidence-based, in fact it was somewhat speculative. The area was data-deficient. This article sets out the results of the first study to subject UK public procurement disputes brought by means of judicial review to empirical study. Whilst today more literature is emerging focusing on the relationship between public contracting and administrative law, discussion has largely focused on the boundaries of public law. However this article, setting out our study’s findings, generates and analyses, for the first time, quantitative data as to the frequency and distribution of public procurement legal challenges within local governments, and how many lead to an application for judicial review in the UK.
This article finds that, within this area, approximately one in four legal challenges allege an application for judicial review will be made; with approximately half of those leading to an application. Overall, the responses facilitate an improved understanding of the role of administrative law in resolving public procurement disputes within the UK, both inside and outside of the Court. The key findings are: i) that the overall number of ‘legal challenges’ in response to local government procurement activity is rising; ii) that there are significant regional variations in these overall numbers; iii) that there is a rise in the number of legal challenges that are (at least) instigated without a lawyer; and iv) that local government policy and practice in relation to data retention and retrieval is sporadic and deficient. Consequently this article makes recommendations for law and policy reform in order to improve the objectives of administrative justice in resolving public procurement disputes; as well as promote consistent data retention practices within local government.
In order to explain how we reached the above findings, we first set out below the research methodology which underpinned the study. This will explain how we came to define what is a ‘legal challenge’; the appropriateness of FOI as the principle mode of data gathering; and why the study covers local governments but not central government bodies. Following that we set out the interconnection between administrative law and public procurement, after which the findings of the study are discussed and analysed. The final section of the article will provide a series of recommendations for law and policy reform, designed to facilitate better local government data retention and retrieval practices, and thereby help achieve the objectives of administrative justice. The findings will also provide a new data set which the Law Commission can draw from, as part of its work on internal administrative review processes, currently underway as part of its Thirteenth Programme of Law Reform.