In July, we published an article on a case in the English Technology and Construction Court1 regarding a legal challenge to a tender evaluation process conducted by the Milton Keynes Council (Council).
The Court found for the plaintiff in those proceedings, Woods Building Services (Woods), and as we stated in our earlier article, Justice Coulson was highly critical of the way in which the Council conducted the tender evaluation.
In a post script to that earlier judgment, the Court has now had cause to consider the remedies it would be prepared to award.2
Remedies sought by Woods
Woods asked the Court to:
- order the Council to award the contract to it
- in the alternative, make an award of damages.
The Court declined to award the contract to Woods for a number of reasons, including:
- Woods had not sought such a remedy in its case as pleaded at first instance3
- the Court felt that such an order would be akin to an order for specific performance, which should “only be granted in exceptional circumstances”4. Justice Coulsen was of the view that such exceptional circumstances did not exist here
- in the Court’s view it would be “inappropriate to award Woods a contract arising out of a process which [it had] found to be flawed”5
- finally, the Court was of the view that damages would be an adequate remedy in this case.6
Quantum of damages
The Court has left broadly open the question of what heads or types of damages Woods should be entitled to, noting that these could potentially include their “wasted costs” of tendering and also their “loss of profit”.7
It appears however, that both parties will have to wait for some time for the final determination of the quantum of damages – in fact “the assessment of damages … will have to await the re-run of the procurement exercise, because it is perfectly possible that this could affect the quantum of any claim made by Woods for loss of profit”.
No doubt the re-run of the tender will be closely scrutinised by all interested parties.