Live Nation Challenges Hyde Park Decision

Billboard magazine has reported that Live Nation is challenging The Royal Parks’ decision to award AEG Presents with a renewed six-year contract to stage concerts at Hyde Park during the summer.  

Facts

The Royal Parks, the charity which manages the capital’s eight largest green spaces, invited tenders for the operation and management of an annual music festival in the central London park from 2020 through to 2025.  AEG has been staging concerts under the British Summer Time brand since 2012, with the likes of Kylie Minogue, Stevie Wonder and most recently, Robbie Williams playing to crowds of up to 65,000 people.  

The annual summer series is structured around six days of concerts with top stars being supported by at least half a dozen artists on each line-up.  Live Nation, who had previously organised Wireless Festival and Hard Rock Calling at Hyde Park, have raised a series of objections to The Royal Parks’ procurement process after having taken part in the tender earlier in the year.  The concert promoter had previously pulled out of talks to renew its agreement with The Royal Parks in 2012, citing noise requirement issues and unworkable logistical demands imposed by the charity.  Live Nation had called the tendering process at the time “flawed” and lamented the licensing limitations at the site.

Law

The Royal Parks charity, which manages the public parks on behalf of the government, follows UK government and EU policy on public procurement.  The broad legal framework on public procurement is set by the EU.  It is intended to ensure that contracts are awarded fairly, transparently and without discrimination on the grounds of nationality and that all potential bidders are treated equally.  The UK has implemented EU law through a series of Regulations, most importantly in this case, the Public Contracts Regulations 2015 (PCR).  

Under the PCR, the advertising, tendering and evaluation of public contracts over minimum threshold levels must comply with several specific procedural requirements, and ultimately the contract must be awarded to “the most economically advantageous tender” (Regulation 67).  The duty to comply with the PCR is owed to any economic operator in the EU (Regulations 89-91).  Therefore, any such economic operator harmed or who may suffer harm (that is, loss or damage) as a result of any breach of the PCR has a right to take action in the High Court.  Proceedings must be started within 30 days of the date when the claimant first knew or ought to have known that grounds for starting the proceedings had arisen (Regulation 92) and, as soon as proceedings are issued, the contract award process is automatically suspended (Regulation 95).    

Remedies available to Live Nation include a decision to set aside the decision to award the contract to AEG, damages for any loss or damage suffered as a result of the breach (e.g. through loss of profits or wasted bid costs) and the imposition of a financial penalty on The Royal Parks.  Brexit is unlikely to affect these proceedings as procurement regulations will remain functionally unchanged in the short term whether the UK leaves the EU with a withdrawal agreement, and therefore a transition period, or without one. In the event of no deal, the European Union (Withdrawal) Act 2018 would retain the regulations as they are (with various technical amendments).

Comment

While Live Nation and AEG have not commented on the story, a spokesperson for the Royal Parks told Billboard: “We are confident we have run the procurement process in accordance with the law.  It would be inappropriate to comment while matters are ongoing”.