The Clapham Omnibus, objective legal standards and EU procurement law. The UKSC in Healthcare at Home Ltd.

This case was not about the procurement of buses – of which there are well-known cases in EU procurement law. Rather, it is about the abstract nature of the many guises of the bonus pater familias, the ‘fair and reasonable man, an intellectual (legal) tradition of defining a legal standard by reference to a hypothetical person, stretching back to roman law. (Lord Reed, at 2). In English law, Greer LJ launched the concept in Hall v. Brooklands Auto-Racing Club, to determine the standard of care required to avoid being found negligent.

In Healthcare at Home Ltd, the UK Supreme Court was asked whether the criteria for the award of a public sector contract (‘public procurement’) had been sufficiently clear. Appellant had argued that whether the contract documents allowed all reasonably well informed tenderers of normal diligence to interpret them in the same way, was to be decided on the basis of factual evidence as to how the various tenderers had in fact understood the documents.

Lord Reed points out (at 4) that in recent times, additional passengers from the EU have boarded the Clapham omnibus, in the case at issue: the reasonably well-informed and normally diligent tenderer. Under EU law (reference is made in the judgment to relevant ECJ case-law) the criteria for a contract award must be formulated in such a manner as to allow all reasonably well informed and diligent tenderers to interpret them uniformly. However, the test is not whether all tenderers have actually interpreted the criteria in the same way. Rather, whether the criteria had been sufficiently clear to permit uniform interpretation by all reasonably well informed and diligent tenderers.

A great case, surely, to kick of one or two comparative law classes. (Thank you to the Times of London for alerting me to the judgment).

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