A key case from the summer has clarified the scope of “economic operator” under the Concession Contract Regulations 2016 (CCR 2016) and who has standing to bring a claim under public procurement law.
Here, Samantha Thompson and Michael Winder have taken a moment to look back at the case of International Game Technology plc and other v Gambling Commission [2023].
Defining “economic operators” under the Concession Contract Regulations 2016
The Gambling Commission (the Commission) commenced a competition for the Fourth Licence to run the National Lottery in accordance with the CCR 2016. International Game Technology and others (the IGT claimants) were subcontractors and planned subcontractors of Camelot, the incumbent operator of the National Lottery who was unsuccessful in the competition.
A challenge was brought against the Commission by Camelot and the IGT claimants, for breaches of the CCR 2016. Camelot ultimately discontinued its claim after being bought by the parent company of Allwyn, the successful bidder.
The Commission raised the defence that the IGT claimants did not have standing to make the claim, given that none of the IGT Claimants had submitted a bid in the competition for the Fourth Licence.
The Court sought to determine whether the IGT claimants lacked standing to bring a claim under the CCR 2016 or whether they could be considered “economic operators”, to whom a duty is owed under the CCR 2016. Specifically, the Court considered whether the proper interpretation of “economic operator” in the CCR 2016 includes a group wider than just unsuccessful bidders, such as potential subcontractors.
Potential subcontractors ineligible to make a claim
Amongst other explanatory notes, the Court’s decision was that the EU Remedies Directive (from which the UK procurement law remedies originated) did not impose an obligation on the UK to provide standing to a wider group than the unsuccessful bidders to a procurement, as seen in EU and Irish case law.
Furthermore, the UK Government did not, when incorporating the Remedies Directive into domestic law, intend to expand the pool of those who had standing to bring a challenge under the CCR 2016. The Court noted a need to take a purposive view of the domestic law to give it the effect that the Remedies Directive intended.
As a result, the Court found that the IGT claimants were not eligible to make a claim under the CCR 2016 because they were non-bidders and could not be classed as “economic operators”.
Wider implications under procurement law
This case has provided clarity to contracting authorities and bidders on which parties have the relevant standing to bring a claim under the CCR 2016. It will be likely that unless a party can somehow prove that it is part of a consortium bid, then as a subcontractor it will not have standing to benefit from the remedies in the CCR 2016.
The only non-bidder who may have standing to bring a claim would be a party who could demonstrate they would have been a bidder but for the breach of procurement law.
Given that the definition of “economic operator” is the same under both the CCR 2016 and the Public Contracts Regulations 2015 — and the remedies are the same — we consider that the position will be similar in the much more widely used Public Contracts Regulations 2015.
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