A public authority can violate the rule of law without infringing the rights of any individual: if, for example, the duty which it fails to perform is not owed to any specific person, or the powers which it exceeds do not trespass upon property or other private rights. A rights-based approach to standing is therefore incompatible with the performance of the courts’ function [on review] of preserving the rule of law ... [AXA General Insurance Ltd. v HMAdvocate  UKSC 46,  1 A.C. 868 at –; apud JNE Varuhas, “The Reformation of English Administrative Law? “Rights”, Rhetoric and Reality” (2013) 72 Cambridge Law Journal 369-413, 382; emphasis added].Consequently, reg.89 PCR2015 is the cornerstone of the system of remedies envisaged in Chapter 6 PCR2015, as it creates the rights to claim on the basis of a breach of such duty for economic operators from EEA states. The extension of such duty (and ensuing right to claim) to economic operators from certain other states is established in reg.90 PCR2015, which will be discussed tomorrow.
The existence of broader possibilities to challenge procurement-related decisions without the coverage of a duty owed under regs.89 and 90 PCR2015 is a contentious issue under English law. For discussion, see SH Bailey, "Reflections on standing for judicial review in procurement cases" (2015) 24(4) Public Procurement Law Review 122-132. See also P Henty, "Can a trade union judicially review a breach of the PCRs?: R. (on the application of Unison) v NHS Wiltshire Primary Care Trust and others" (2012) 21(4) Public Procurement Law Review NA203-207; and SH Bailey, "Contracting and judicial review: R. (on the application of A) v Chief Constable of B Constabulary" (2013) 22(4) Public Procurement Law Review NA106-108.