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Judicial Review of Government Procurement

Judicial Review of Government Procurement

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Published by Margaret Rose
Paper presented by Karl Hudson Phillips QC and co-authored by Margaret Rose at the First Caribbean Public Procurement Conference held on 19th-20th March 2008, Hyatt Regency Trinidad.
Paper presented by Karl Hudson Phillips QC and co-authored by Margaret Rose at the First Caribbean Public Procurement Conference held on 19th-20th March 2008, Hyatt Regency Trinidad.

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Categories:Types, Business/Law
Published by: Margaret Rose on Nov 22, 2011
Copyright:Attribution Non-commercial

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06/10/2015

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CARIBBEAN PUBLIC PROCUREMENT (LAW AND PRACTICE)CONFERENCE 2008HYATT HOTEL AND CONFERENCE CENTREWEDNESDAY 19
TH
MARCH 2008PAPER BY KARL T. HUDSON-PHILLIPS, Q.C.ON Judicial Review and Public Procurement in Trinidad andTobagoIs there a Public Law Remedy in the Tendering Process forpublic projects?
The most vexing question facing an unsuccessful tenderer whosuspects impropriety on the part of a public procuring entity iswhether he should challenge the decision before the Courts. Anywould-be litigant must face head on the risk of high legal costsand the added disincentive of litigating against a procuring entitywith which he may wish to do business in the future. Even worseis the fact that definitive judicial guidance appears elusive whendealing with the jurisdiction of the courts to review publictendering decisions. Judicial Review is the principal method by which the courts haveexercised a supervisory jurisdiction over the manner in whichPublic bodies make decisions. It is a
specie
of action unique tothe Public law. The Government through its various
 
instrumentalities can enter into contracts with the private sectorand be subject to the jurisdiction of the private law as any otherprivate citizen albeit that by virtue of the public nature of thebody and its functions it may be held under the public law tohigher standards than a private citizen. The courts under thepublic law through the mechanism of judicial review will look atthe manner in which decisions are made in order to ensure thatthey were arrived at fairly, rationally, reasonably and in goodfaith. The rationale for seeking to place on public bodies thisobligation of considerate decision making is to protect citizensfrom executive abuses.Under the Judicial Review Act
1
, the grounds upon which anapplicant for judicial review is entitled to relief are set out insection 5(3)
ibid 
. A similar statutory formulation and basis for judicial review exists in Barbados
2
. In Jamaica, although there isno specific judicial review act, provision is made for the procedureof judicial review by virtue of Part 56 of the Supreme Court CivilProcedure Rules 2002. Through the process of judicial review the litigant can obtainorders of 
certiorari, mandamus
and
 prohibition
and judicialreview has developed as one of the most important mechanismsfor achieving public justice in common law jurisdictions and inreducing “the zone of immunity”
3
previously existing around agreat deal of governmental action.
1
Judicial Review Act (T&T) No. 60 of 2000.
2
Administrative Justice Act 1980 and Judicial Review (Applications) Rules 1983.
3
Total Justice (1985) by L. Friedman
2
 
 The reliefs of certiorari, mandamus and prohibition are unique tothe public law since private law remedies more usually take theform of compensation in damages for provable loss. The flexiblenature of these public law reliefs is obviously more attractive tothe unsuccessful tenderer who may have enormous evidentialdifficulties in a private law action to prove specific damage overand above the cost of tendering unless he is able to proveconclusively that he would have won the contract. The task of proving this is increasingly more remote with the inclusion of what are now standard clauses in the Tender Call that theprocuring entity is not bound to accept the lowest or any bid atall. Further, even the calculation of damages on the basis of lossof chance is arbitrary and at best a hopeful consideration sincethere is no ready acceptance of this as a measure of damagesby the Courts in the region. The principal advantage therefore ina claim for judicial review over a private common law action is thenature of the relief which can be obtained for the former.It should be noted, however, that it is not every decision of apublic body which is susceptible to judicial review. The Courtshave recognized that public bodies ought to be free to enter intocontracts and perform other private acts just as any other privatecitizen and in such circumstances to be subject to private lawprinciples. In this regard the courts traditionally refuse to grant judicial review of decisions where adequate private law remediesexist or the particular activity giving rise to the questioneddecision is held to be “a private law exercise”.
3

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