Ramsey J has already delivered two notable procurement judgments in the High Court (TCC) this month:
American Cyanamid Lives On
Firstly, the Court has confirmed that the American Cyanamid test (American Cyanamid Co v Ethicon Ltd  AC 396) is the correct test to apply in determining whether to lift an automatic suspension (which in this instance was instigated under Regulation 45G of the Utilities Contracts Regulations 2006). Ramsey J dismissed claims that American Cyanamid is inconsistent with the Remedies Directive.
In applying the American Cyanamid principles the Court concluded:
- there was a serious issue to be tried;
- damages would not be an adequate remedy; and
- the balance of convenience lay in favour of not lifting the suspension (a further delay of 6 to 12 months was not considered a major factor within the context of a procurement process which had already been subject to a delay of 2.5 years).
In relation to adequacy of damages, the Court was persuaded by the following factors:
- the "great difficulty" in calculating the damages in this instance; and
- the impact on the claimant's reputation, goodwill and its ability to secure other comparable international contracts if this particular contract was lost.
Disclosure of "Abnormally Low" Tender
Secondly, the Court has ordered the disclosure of detailed price information relating to a winning tender, within the context of a claim that the MoD failed to investigate an alleged abnormally low tender.
The Court held that information previously voluntarily disclosed by the winning bidder (not a party to the dispute), which included a detailed breakdown of the tender price, was not sufficient to properly understand the documents disclosed. Disclosure of further information on the winning bidder’s costs was therefore appropriate.
This decision is likely to set alarm bells ringing, given the potential for detailed price information to be disclosed to other bidders. The judgment has not yet been published, however there are practical steps which can be taken to safeguard confidential or commercially sensitive information which is to be disclosed including:
- confidentiality ring;
- inspection at a designated place (eg a solicitor's office);
- prohibition against making notes and/or taking copies.
NP Aerospace v Ministry of Defence (2014) QBD (TCC)