February’s case digest includes two High Court cases considering the lifting of automatic suspensions on contract awards for services.
Please feel free to submit a comment below or send us an Ask query if you have any views on the cases covered, or think that we have missed a case that should be brought to the attention of public procurement practitioners.
Pressetext comes to development agreements (R (Gottleib) v Winchester City Council).
The High Court has ruled that Winchester City Council acted unlawfully in varying an agreement with a developer without holding a new procurement exercise under the Public Contracts Regulation 2006. The development agreement, originally signed in 2004, was a public works concession contract that was not put out to tender, in breach of the procurement rules (although it was now too late for this breach to be remedied). The High Court concluded that variations to the agreement in 2014, taken as a whole, resulted in a contract which was materially different in character, such as to demonstrate the intention of the parties to re-negotiate the essential terms of the contract. The variations were intended to make the development scheme financially viable for the developer.
For more information on this decision and the impact it may have, see Christopher Brennan’s post, Restoring viability to city centre regeneration? Enter Pressetext.
Automatic suspension on award of IT contract lifted (Advanced Business Software and Solutions Ltd v The Pirbright Institute).
The High Court has granted an application by the Pirbright Institute (a government funded scientific research charity) to lift the automatic suspension on the award of a contract for a new integrated IT system, following a challenge by an aggrieved, unsuccessful bidder. The High Court considered that the claimant had shown that there was a serious issue to be tried in relation to alleged breaches of the Public Contracts Regulations 2006.
However, the High Court concluded that damages would be an adequate remedy for the claimant and that the balance of convenience lay in lifting the suspension. In particular, the High Court considered that a delay in introducing the new IT system would cause inconvenience and inefficiency for Pirbright’s scientists and researchers. Pirbright’s current IT systems are old fashioned and nearing the end of their useful life. There was a risk that they may not be effective during the period of the delay if the suspension were maintained.
Automatic suspension on award of new contract for adult substance misuse recovery services lifted (Solent NHS Trust v Hampshire County Council).
The High Court has lifted the automatic suspension on the award by Hampshire County Council of a new contract for adult substance misuse recovery services. The procurement process is being challenged by the incumbent supplier of these services, Solent NHS Trust, which alleges errors in the evaluation of the tenders. The High Court concluded that there was a serious issue to be tried, although it could not reach a view on the strength of the issues. It also concluded that damages would be an adequate remedy for the claimant.
The High Court concluded that the balance of convenience lay in lifting the suspension. This would ensure that the service users (vulnerable drug and alcohol addicts in Hampshire) would benefit sooner from more fully integrated and improved services as envisaged by the new contract. The whole tendering process for the new contract had been predicated on there being substantial and important improvements in the services. The High Court was concerned about the delay in making these new services available if the suspension were maintained pending even an expedited trial.