NI High Court: Public procurement limited to architects was legal

About this case:

• Citation:
  [2023] NIKB 4
• Judgment:
  External link
• Court:
  NI High Court
• Judge:
  Mr Justice Michael Humphreys

Background

The applicants here were a Chartered Architectural Technologist (CAT) and the current President of the Chartered Institute of Architectural Technologists (CIAT). CATs are construction industry professionals concerned in the science, discipline, and practice of building design. 

CIAT serves as the representative body for CATs and imposes mandatory CPD and professional indemnity insurance requirements on its members, as well as acting as a regulator through enforcement of its Code of Conduct. 

CATs are distinguished from architects. The term ‘architect’ can only be used by a person who is on the Register of Architects, which is maintained by the Architects Registration Board. 

The applicants were seeking to judicially review a decision by the respondent, the Education Authority (EA), to exclude CATs from applying to a public procurement opportunity. 

They alleged that the decision was unlawful as it contravened the Northern Ireland Public Procurement Policy (NIPPP), and irrational. 

The EA invited applications for a variety of construction related projects within the education sector. A maximum of six economic operators would eventually be invited to tender for the individual project. The shortlist would be maintained for a period of ten years and applicants could seek inclusion on the list at any time. 

The Memorandum of Information for the competition made it clear that the consultant must have, within its team, an architect. This was required to ensure that services such as obtaining planning permission, obtaining building control approval, and assessing contractors, could be carried out. 

The applicants argued that all these roles fell within the professional competence and qualification of CATs. 

The Northern Ireland Public Procurement Policy 

Regulation 58 of the Public Contracts Regulations 2015 permits selection criteria to be used provided they relate to either: 

(i)  The tenderer’s suitability to pursue a professional activity; 

(ii)  Its economic and financial standing; or 

(iii)  Its technical and professional ability.

The applicants argued that, pursuant to NIPPP, the respondent was obliged to ensure value for money and to secure open and effective competition in the creation of the rules for this list. The respondent chose to impose a specific requirement that only architects could be considered for the role of lead consultant, which served to narrow the field of potential tenderers. 

When challenged in relation to the requirement that the lead consultant be an architect rather than any other discipline, EA’s Senior Category Manager for Minor Works Procurement, Damian McCarroll, replied: 

“As a client we have the greatest respect for both the professional role of the architect and the architectural technologist, however whilst there is an overlap in training, qualification and experience the two roles are not equivalent”.

Differing factors included that; architects are regulated by the law; the training process is not identical; the assessment and qualification processes are significantly different; and the requirement to include an architect for this kind of work is a standard approach in the public sector. 

McCarroll, who has experience in the industry and is a quantity surveyor himself, claimed that architects, “sit at the pinnacle of building design”. He also argued that the structure of the required consultant team was decided based on the scale, scope and complexity of the projects involved. 

The applicants’ response 

The applicants criticised the respondent for failing to understand or articulate the differences between the respective professions and more generally for its “ex post facto justification for its decision to exclude CATs from the role of lead consultant”. 

They entirely rejected the contention that the scale, scope, and complexity of the works were such that only an architect could lead the design process. In support of this, they referenced a range of large-scale complex construction projects which were led by CATs. 

In terms of professional regulation, they argued that a similar level of protection to the public is achieved through CIAT’s Royal Charter compared to the statutory regime concerning architects. 

Further, it was contended that while the education and professional training of the two professions may be different, there was no explanation as to why this would justify differential treatment in relation to the role of lead consultant. 

Consideration

The court noted that according to CJEU caselaw, contracting authorities enjoy a discretion in relation to the technical and professional ability standards fixed by any given procurement competition, per CEI and Bellini [1987] ECR 3347. 

Here, the question was whether the requirement that an economic operator hold a particular professional qualification served to breach the requirements of competition and fair dealing set out in the NIPPP. 

The court noted that selection criteria always serve to narrow the pool of potential tenderers in a procurement competition, and that alone will not prove that the process is anti-competitive. 

The applicants here argued that the decision maker did not take adequate steps to inform itself of the true position in the market before settling on the rules of the competition. 

The judge found that this analysis “flies in the face of the evidence”, which showed that the panel members who made the decision had extensive experience, internally and externally, of the roles and abilities of CATs. Instead, this evidence showed that it was a conscious, informed, and unanimous decision. 

Conclusion 

Ultimately, the court rejected the arguments put forward by the applicants. Both on the evidence and as a matter of legal principle, the court was satisfied that the respondent was entitled to impose the requirement that only architects could act as lead consultants. 

While this narrowed the competition, there was no basis to contend that it caused an artificial narrowing of competition or that it breached any requirement of fair dealing, informed decision making, or transparency. 

Further, the court was not willing to conduct a merits-based review into the decisions taken around the rules of the competition. Here, the experienced panel clearly possessed the necessary material to make the decision in question. Once this was established, then the matter was one of professional judgment for the individuals concerned, with which the court would not interfere. 

For these reasons, the applicants’ application for judicial review was dismissed.