The decision in question was that in Healthcare at Home Limited ("HHL") v The Common Services Agency ("CSA")  UKSC 49. The decision arose out of a tendering process carried out by the CSA in 2010 in respect of the provision of medical services to health authorities in Scotland. HHL was the existing supplier of the services but was unsuccessful in its bid and sued the CSA on the basis that it had breached certain duties under the Public Contracts (Scotland) Regulations 2006 which govern public procurement in Scotland. In particular, it complained that the criteria in the invitation to tender were unclear and the reasons given for rejection were unclear and lacking in detail. HHL's case had been rejected at first instance and by the Inner House and so they had appealed again to the Supreme Court.
In reviewing a decision made by a contracting authority under the 2006 Regulations the court will put itself in the position of the "reasonably well-informed and normally diligent tenderer" ("RWIND Tenderer") and will ask whether such a person would have considered the decision to be unclear, unfair or lacking in detail. In delivering the opinion of the court, Lord Reed started by pointing out that the RWIND Tenderer is just the most recent passenger (a visitor from the EU!) to travel on board the Clapham omnibus. Indeed, for a number of years, the reasonable person has been in good company having been joined on the omnibus by "the right-thinking member of society, familiar from the law of defamation, the officious bystander, the reasonable parent, the reasonable landlord, and the fair minded and informed observer, all of whom have had season tickets for many years".
The approach of the court is the same in respect of all passengers - it puts itself in the position of the hypothetical person and asks itself, objectively, what such a person might think of the case in hand. But, in the present case, HHL had taken a novel approach. At Proof before the Lord Ordinary it had led evidence from a number of witnesses to the effect that they had not understood the criteria in the same way as the successful tenderer. Their evidence, HHL said, proved what RWIND Tenderers actually understood unless, of course, it was shown by the CSA that the witnesses were not actually well-informed nor diligent. In other words, the court did not need to put itself in the position of a RWIND Tenderer, because there was actual evidence of what RWIND Tenderers thought of the present tender process.
In the Inner House the Lord Justice Clerk had held that what a RWIND Tenderer might understand requires an objective answer in the same way that a reasonable person would. While the court would want to hear evidence about technical terms in the particular industry and, therefore, how the document would be understood by a RWIND Tenderer that is different from it hearing evidence as to what the tenderers themselves thought the criteria actually required. The latter kind of evidence was irrelevant. The subjective views of the witnesses are not to be taken into account. Rather the court is to decide the matter objectively, having put itself in the shoes of the RWIND Tenderer. The Supreme Court agreed with that analysis entirely and rejected the appeal.
If you need any advice about any of the issues arising out of this article, please do not hesitate to get in touch with Richard McMeeken or his team.