In a rare example of the High Court agreeing to maintain the automatic suspension in the context of a procurement challenge, the Technology and Construction Court (TCC) has dismissed an application to lift the suspension and instead ordered an expedited trial in a claim concerning the provision of respiratory protective equipment to London Fire Brigade (LFB).
Practitioners will note that this represents something of a departure from the norm. Private sector challengers to the outcomes of public procurements may take some encouragement from this development, given the ordinary expectation that the TCC will rarely find against a contracting authority on these applications.
The procurement concerned the provision of respiratory protective equipment (RPE) to the LFB. Draeger Safety UK Limited (Draeger), the claimant, is the incumbent supplier of RPE to LFB, and has been for the past 20 years. The current equipment in operation is 10 years old. In August 2020, LFB published a contract notice in the Official Journal of the European Union initiating the procurement of a ten-year contract for firefighting equipment together with repair and maintenance services. The stated aim of the procurement was to obtain lighter and easier to use equipment to improve the safety of firefighters and improve the service to the public.
LFB received two bids for the contract. Following an evaluation process, LFB determined that the successful bidder was MSA Britain Limited (MSA). The stated reasons for the outcome included that MSA scored very highly on the price element of the procurement.
Draeger has challenged the outcome on several bases including that MSA's bid was abnormally low, that LFB departed from the published evaluation procedure and that LFB committed several manifest errors in its evaluation of Draeger's bid.
LFB, in the usual way, made an application to lift the automatic suspension, relying in particular on a contention that urgency attracted to entering into the contract with successful bidder, that Draeger's claim did not disclose a serious issue to be tried, and that the balance of convenience therefore favoured lifting the suspension. Draeger resisted that application and made its own application for an expedited trial, which LFB supported as a fallback position in the event its own application was unsuccessful.
The Court's decision
The judgment records the Court's consideration of the American Cyanamid principles in the context of procurement cases and deals briefly with each element of that test, as follows:
Serious issue to be tried:
LFB contended that it benefited from a potential knock-out blow on the basis that (it argued) Draeger's bid failed to satisfy an essential requirement of the procurement. Draeger resisted that suggestion and identified that LFB had evaluated the bid in the full knowledge that this was the position and that the requirement could and would be satisfied prior to contract award.
The Court concluded that it was not in a position to make an evaluation without further detailed analysis (including by reference to factual evidence), and that it was satisfied that there was indeed a serious issue to be tried.
Adequacy of damages for Draeger:
The Court accepted that a degree of prestige and reputation-enhancement attracted to winning the LFB contract and that it was arguable that losing the contract could cause Draeger, as incumbent, losses for which damages would not be adequate. Notably, and of interest for future challengers, that conclusion was reached even whilst recognising that the procurement was not unique or high-value (that previously having been understood as a desirable if not necessary element of the argument in cases like Bombardier).
Adequacy of damages for LFB:
The Court also accepted that damages to be an inadequate remedy for LFB, given LFB's desire to avoid delaying the introduction of new, more advanced equipment and the operational benefits it would bring with it including in the wake of the Grenfell Inquiry.
Balance of convenience:
The timely introduction of new RPE was deemed by the Court to be a "very strong factor in favour of lifting the suspension" (para 49). However, since the Court was able to accommodate an expedited trial, to take place in October 2021, it decided that a short delay until the Autumn would not have any significant impact on the implementation of the RPE, which LFB estimated would have a 9-12 month lead-in time. It concluded that the least risk of injustice lay with maintain the automatic suspension pending an expedited trial.
The trial is provisionally scheduled to take place between 21-28 October 2021.
It is commonplace for the Court to side with the contracting authority where an application to lift an automatic suspension is made (see eg recent cases including TES Group Ltd v Northern Ireland Water Ltd  NIQB 62; Mitie Ltd v Secretary of State for Justice  EWHC 63 (TCC); and Alstom Transport UK Ltd v Network Rail Infrastructure  EWHC 3685 (TCC).
Of note in this case was the apparently determining factor of the Court's availability to accommodate an expedited trial on a timetable that did not risk seriously impairing the eventual introduction of the new RPE. Whilst of assistance to the challenger on these facts, that does create a degree of uncertainty for practitioners in advising on the likely outcomes of such applications given that the Court's diary can be fluid and is not within the gift of any party to control.
That said, the decision on this case to maintain the suspension does provide an important reminder to all involved in public procurement cases that an application by a contracting authority to lift an automatic suspension is not a foregone conclusion, and where the balance of convenience falls in favour of the private sector bidder, the Court will say so and act accordingly.
Draeger was represented by Jason Coppel QC and Ben Mitchell of 11KBW, instructed by Womble Bond Dickinson (UK) LLP