In a recently reported case, the question of the extent to which judicial review proceedings could be used as a challenge to a breach of the Regulations took an interesting turn.
In the case of The Queen (on the application of Unison) v NHS Wiltshire Primary Care Trust and others [2012] EWHC 624 (Admin) a trade union sought judicial review of a decision by the PCT to outsource family health services. The union challenged the decision to outsource without conducting a competitive procurement procedure.
Whilst refusing the application for judicial review in this particular case the judge commented that although there was no reported case of a union seeking a public law remedy in the context of the Regulations there was no reason to suppose that such an application was legally impossible. He could envisage circumstances (although he did not speculate what those might be) in which a breach of the Regulations could so affect the members of a union that there should be a remedy.
It is notable that it is a requirement of judicial review proceedings that the person asking for judicial review must have a 'sufficient interest' in the subject matter to be affected by a decision in some way. Third parties who might have a 'sufficient interest' are not economic operators within the definitions of the Regulations so can only bring a claim by way of judicial review.
In the High Court the judge noted that Unison would need to show that performance of the competitive tendering procedure might have led to a different outcome that would have a direct impact on it or its members. He further noted that the burden would rest upon an applicant to support such a proposition by some evidence related to the particular facts rather than mere speculative possibilities.
In this particular case he found that Unison could only speculate at what might have happened had a procurement under the Regulations taken place rather than a decision to outsource. There were no identifiable bidders and no details of how a bid might have been formulated. In the circumstances Unison could not discharge the evidential burden required and accordingly failed in its challenge on that ground.