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Suspending the award of a public contract: High Court refuses to lift suspension

In the case of Bristol Missing Link Limited v Bristol City Council [2015] EWHC 876 (TCC), the High Court has refused to lift the suspension of the award of a contract by Bristol City Council (“Council”) until a procurement dispute with an unsuccessful bidder has been resolved.

Legal context

Following the decision by a qualifying public body to award a contract to a supplier, the Public Contract Regulations 2006 impose a standstill period during which the contract cannot be concluded. This standstill period is either 10 or 15 calendar days (depending on means of communication). If a challenge is raised during this standstill period (usually by an unsuccessful bidder for the same contract), the public body is automatically barred from entering into the relevant contract until proceedings are dealt with in Court. The public body can however apply to the Court for an order to lift the automatic suspension in limited circumstances.

It should be noted that while the tender in the present case was governed by the Public Contract Regulations 2006, all new tender processes entered into on or after 26 February 2015 will be governed by the new Public Contracts Regulations 2015. The new regulations have generally not changed the rules regarding the standstill period or bidders’ remedies for breaches of the regulations.

The case

Bristol City Council tendered a contract for domestic violence and abuse support services in July 2014.  The incumbent supplier (Bristol Missing Link Limited or BML) submitted a bid for the contract along with two other bidders. In January 2015, BML was informed by the Council that its bid had been unsuccessful.

BML and the Council entered into detailed correspondence regarding the failed bid (during which the Council refused to provide details regarding the successful bidder’s tender). BML commenced legal proceedings in February 2015, and the Council’s procurement was automatically suspended. BML claimed that:

  1. its score was moderated downwards following the allocation of individual scores by the individual evaluators and the reason for this had not been properly explained

  2. the individual scores that were awarded to its tender were unfairly low, and

  3. there were issues with how the successful bidder’s bid had been evaluated.

The Council made an application to the High Court to have the automatic suspension lifted.

The judgment

The High Court ruled that the suspension should remain in force until the case had gone to an expedited trial. The Judge gave the following reasons (amongst others) for his judgment:

  • a delay in awarding the contract would not be detrimental to service users
  • there was no issue with the services being provided by BML and these services were generally comparable to the new services to be provided 
  • if the suspension was lifted, BML’s only remedy would be damages and these would be difficult for BML to quantify as it was a non-profit organisation (damages usually relate to “lost profits”)
  • lifting the suspension would have “catastrophic consequences” for BML as the loss of this contract would have significant repercussions for its other services
  • the advantage of having the suspension in place would be significant to BML while its disadvantages would be negligible to the Council
  • the Council had not shown BML’s claims were hopeless. There were clear issues arising out of the scoring of the bid which were difficult to settle without disclosure of relevant documents taking place
  • the Council’s approach was potentially unfair as it had referred to documents and events in its application to lift the automatic suspension which it had not made available to BML during the disclosure process.

Analysis

This judgment highlights how important the facts of a particular case are when the Court is asked to determine whether a contract suspension should be lifted. The relatively low impact to the service users if the award of the contract was delayed, and the fact that damages would be an inadequate remedy for BML were significant factors for the Court in reaching its decision.

Suppliers should carefully consider the evaluation criteria provided by public bodies when preparing their bids. In the event that a Supplier believes its bid has been underscored or otherwise wrongly evaluated, the Supplier should consider whether it is worth raising questions during the standstill period regarding the evaluation of its bid by the public body.

It is also best practice for public bodies to maintain accurate and appropriately detailed notes regarding their evaluation and moderation processes. These notes will help a public body to assist suppliers in understanding the decision that has been taken in relation to their bid.

For more information please contact Nicola Fulford or Rupam Davé.