- Exemptions in public procurement for intelligence activities (Excession Technologies v Police Digital Service)
- What are the practical implications of this case?
- What was the background?
- What did the court decide?
- The first preliminary issue—application of the DSPCR to the procurement
- The second preliminary issue—limitation
- The third preliminary issue—implied contract
- Case details
Public Law analysis: In Excession Technologies, the court was asked to determine three preliminary issues arising in a challenge by Excession Technologies Ltd (Excession) in respect of a procurement exercise carried out by the Police Digital Service (PDS), for the appointment of a contractor to a framework agreement for the provision of computer and information technology services for covert surveillance operation rooms (the Procurement). The three preliminary issues were: 1. Was PDS entitled to rely on an exemption under regulation 7(1)(b) of the Defence and Security Public Contracts Regulations 2011 (the DSPCR) in relation to the procurement?; 2. Were certain claims pleaded by Excession time-barred pursuant to the DSPCR? 3. Was the procurement governed by an alleged implied contract between Excession and PDS? The court determined that PDS was entitled to rely on the regulation 7(1)(b) DSPCR exemption (issue 1) and therefore the procurement was exempt from the entirety of the DSPCR. Had the DSPCR applied, however, then (with the exception of one ground of challenge) Excession's claims were not time barred (issue 2). However, notwithstanding PDS undertaking to follow a particular evaluation process in the tender documents, the court found there would be an implied contract only to the extent that Excession's tender, if compliant, would be considered if other tenders were considered and that such consideration would be undertaken in good faith (issue 3). Written by Lucy James, partner and Michael Rhode, senior associate at Trowers & Hamlins LLP.
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