The High Court judgment published last week in relation to the procurement dispute between Amey and West Sussex County Council raises some interesting points in relation to how authorities can respond to legal challenges by aggrieved bidders.
It was a tender for road maintenance services and the outcome was “wafer thin”. Amey was a very close second and raised a claim arguing the breach of various duties. There was an interim hearing before the courts and these claims were not thrown out. So the Council found itself with a not unusual dilemma. Contract with the winning bidder and face the challenge, or do something else?
The Council opted for something else – abandoning the procurement and starting again in the belief that this would avoid the litigation which the Council said in its letter to bidders would be “expensive, protracted and inherently uncertain in terms of outcome”.
So what did the High Court have to say?
- The discretion to abandon a procurement is a wide one. Even though in part driven by the claim it was not unlawful and so could not be overturned.
- But, abandoning the procurement did not defeat Amey’s claims for breach which preceded the abandonment. If there had been a breach during the procurement such that Amey should have won then it was “highly likely” that Amey would have got the contract. Given that conclusion, the abandonment did not defeat Amey’s claims.
The High Court did not decide on whether or not there had been a breach – but the decision leaves the door open for the underlying claim to proceed in relation to a procurement procedure that is otherwise dead.
For authorities, there is some comfort that a decision to abandon will be hard to overturn. But for bidders and authorities there is a change to the balance of dispute – abandonment might still be part of a strategy to deal with claims, but it does not have the cut and dried effect of defeating all claims.
A question left open is what would be the position if the original preferred bidder could also find arguments to open up its score to get back into first place.