In Exel Europe Limited v University Hospitals Coventry and Warwickshire NHS Trust, the High Court again, in the second case within a month, concluded that it was appropriate to lift the automatic ban on entering into a contract, to allow the contracting authority to proceed with the award of a contract, notwithstanding that the award was subject to legal challenge. This demonstrates the difficulty faced by claimants, in the absence of a very strong substantive case, to overcome the public interest in a public authority proceeding with a contract for important services.
Under the amended Public Contracts Regulations 2006, where a challenge is made to a procurement procedure during the standstill period, the contracting authority is required to refrain from entering into a contract until the “proceedings at first instance” are determined, discontinued or otherwise disposed of. However, provision is made to allow a court, on the application of the contracting authority, to lift the automatic suspension, which the High Court did in this instance on 21 December 2010.
The court decided that the balance of convenience lay in allowing the contract to be awarded:
- due to the weaknesses in the case;
- the likelihood that the claim may be time barred;
- the fact that although there is a public interest in securing the valid and proper execution of public procurements, there was an equally strong public interest in the efficient and economic running of the NHS;
- the urgency, established by the trust, for the procurement to go ahead; and
- the finding that the claimant could be adequately compensated by damages.