Scotland experienced severe winters in 2009/10 and 2010/11, and as a result the roads required extensive gritting. The Scottish government bought de-icing salt for that purpose. They bought the salt direct from several sources.
They did not, however, buy any salt from the pursuer, Nationwide Gritting Services Ltd (“NGS”), a supplier of salt. NGS alleged that the Scottish Government breached the public procurement law, as set out in the Public Contracts (Scotland) Regulations 2006 SI 2006/1 by failing to hold a competitive tendering process.
The Court held that in the winter of 2009/10 the Scottish Government did not breach the Regulations because the conditions in Public Contracts (Scotland) Regulations 2006 SI 2006/1 reg 14 were met, i.e. it was extremely urgent to buy the salt due to unforeseeable events and those events which were beyond the control of the government and as a result it was impossible for the government to comply with the procurement procedure and it was strictly necessary to buy the salt using the negotiated procedure.
With regard to the winter of 2010/11, the Court found that the government did breach the procurement regulations because there was sufficient time to hold the procurement procedure, and therefore it was not strictly necessary to buy the salt using the negotiated procedure. However, given that NGS was unable to show that it would have bid, nor that its bid would have been successful, they could not show loss and were therefore not entitled to damages.
Aidan O’Neil QC was involved in this case.
CA93/12 -  CSOH 151https://www.scotcourts.gov.uk/search-judgments/judgment?id=ee9bafa6-8980-69d2-b500-ff0000d74aa7