If you feel that you have been treated unfairly in a public contract tendering exercise, you are anything but powerless and should take legal advice straight away. A High Court case on point concerned the award of a contract for the supply of protective breathing equipment to a municipal fire brigade.
Recent years have brought significant improvements in safety apparatus used by firefighters and, against the background of the Grenfell Tower disaster, the brigade was anxious to update its officers’ equipment. A company that had provided respiratory apparatus to the brigade for 10 years was one of those who tendered for a fresh 10-year contract. The contract was, however, awarded to a trade rival after it scored higher than the company, both in terms of quality and price.
The company launched proceedings against the brigade under the Public Contracts Regulations 2015, arguing that the tendering process was seriously flawed. It asserted, amongst other things, that the rival’s tender was abnormally low and that there were manifest errors in scoring bids. The allegations were disputed by the brigade but, by operation of Regulation 95(1) of the Regulations, award of the contract was automatically suspended pending resolution of the dispute.
In rejecting the brigade’s application to lift the suspension, the Court found that the company had raised serious issues to be tried. If the suspension were lifted in error, the company would not be adequately compensated by an award of damages. The same could, however, also be said of the brigade if the suspension were maintained in error, thus delaying the award of an important contract.
The Court acknowledged that the public interest in the timely introduction of new protective equipment was a very strong factor in favour of lifting the suspension. However, the Court was in a position to accommodate an expedited trial of the dispute within a matter of weeks. Such a brief delay would not have any major impact on the progress of the equipment improvements. The balance thus came down in favour of maintaining the suspension until the outcome of the trial.