Procurement remedies - another blow for bidders?

Readers of this blog may recall that last year the Supreme Court dealt something of a blow to bidders by limiting the circumstances in which damages for a procurement breach might be awarded (click here to read our blog post on this).

Now almost exactly a year later the High Court has further clarified the position on the court's powers to order that a contract should be awarded to a bidder where a finding has been made that the Contracting Authority breached the Regulations.

This is an order commonly sought by bidders whose key interest is usually to secure a valuable commercial contract particularly where a court has already concluded that but for the Authority's breach of the Public Contracts Regulations it would have been the winning bid. With some justification most bidders might consider that in those circumstances it is 'only fair' that the contract should be awarded to them.

The Public Contracts Regulations prescribe 3 potential remedies for bidders but these do not include a power to order an Authority to enter into a contract with a bidder who has been successful in proceedings. However the Regulations do not fetter other powers of the Court and so in principle it is possible to ask the court to order that the Authority must enter into a contract with a bidder following the outcome of legal proceedings.

However the High Court has reiterated that such a remedy will be granted only in 'exceptional circumstances'.

As is often the case with such pronouncements there is no clarity around what might amount to an 'exceptional circumstance' but the way English law stands at the moment it is in fact difficult to identify any circumstance where such an order might be made.

Why so pessimistic?

Well English courts have had a long-standing aversion to forcing the provision of services. For example an employee cannot be ordered to work and an employer cannot be ordered to employ someone. Even more importantly though in most procurements ordering an Authority to appoint a particular bidder actually places that bidder in a better position than it was in the tender process itself. Usually the tender documents will reserve a right not to award a contract so all bidders go into the process knowing that a contract may not be concluded.

English courts particularly dislike the principle of putting a litigant in a better position than it would have been in the ordinary course of events so as long as procurement documents retain the right not to award I cannot see any circumstance in which a court will take it upon itself to award the contract and oblige the Authority to appoint a previously unsuccessful bidder.

It is fair to say that the English legal system is not a particularly welcoming place for disappointed bidders: ineffectiveness is virtually unheard of even now an automatic suspension can be relatively easy to lift the path to a damages claim is not straight-forward and costs can be prohibitive. However given the knots the UK Government already finds itself in over the terms of Brexit it is difficult to see this at the top of anyone?s list of legislative priorities any time soon.

MLS (Overseas) Limited v The Secretary of State for Defence and SCA Shipping Consultants Associated Limited (as Interested Party)

Posted by Helen Prandy
 

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