In this update, Capsticks’ procurement specialists summarise two important procurement cases for bidders and contracting authorities from winter 2020/2021.

Limits on the automatic suspension of contract awards: Aquila Heywood v Local Pensions Partnership [2021]

What is the case about?

The limits on the automatic suspension of the contract award process that arises when a bidder issues a claim in the court.

Aquila issued a court claim challenging Local Pensions Partnership’s (LPP) decision to award a contract under a framework for IT services to another bidder on the basis of errors and record-keeping issues. A standstill period was not required (although the authority observed one voluntarily).

In light of the challenge, LPP withdrew its decision, re-evaluated bids and proposed to award the contract to the same bidder who won first time around. This ‘second’ decision was not challenged.

The court was tasked with deciding whether the suspension prevented LPP’s ‘second’ decision to award the contract to the preferred bidder (on an amended basis).

What did the court decide?

The court found:

• The automatic suspension which prevents contract award applies even where there is no need for a contracting authority to observe a standstill period (e.g. when calling off a contract under a framework).
• The suspension does not prevent a contracting authority from withdrawing a decision and re-evaluating bids. The suspension only prevents the contracting authority from proceeding with its decision to award the challenged contract.

Why is this case significant?

Contracting authorities will be pleased that the court has protected their freedom of contract by limiting the suspension to the challenged decision, enabling an authority in principle to proceed with an amended procurement process. It also confirms that authorities are entitled to apply to lift the suspension—enabling them to proceed with their preferred bidder - where there is no requirement for a standstill period.

A copy of the judgement is here.

A timely reminder about debriefing bidders: Bromcom Computers v (1) United Leaning Trust and (2) United Church Schools Trust [2021]

What is the case about?

The level of knowledge required to start time running for the purposes of the limitation period for procurement claims.

Bromcom challenged a decision by the two authorities to award a cloud based IT system for 57 schools to another bidder. Bromcom alleged that the authorities had failed to evaluate their price lawfully.

The authorities argued Bromcom’s claim was barred by the limitation period. A challenger usually has 30 days to start a court claim from when it knew or ought to have known that the grounds for starting proceedings have arisen. Otherwise, the challenge will be barred by the statutory time limit.

What did the court decide?

The court found that the challenger did not have (before the expiry of 30 days) information which “apparently clearly indicated…an infringement”, notwithstanding the authority had provided written and oral feedback.

The reason for this was that the context and quality of the debrief information provided was misjudged and poor: the debrief letter was “sketchy”; the oral feedback session (by MS Teams) was “heated” and, in any event, had an inherent risk of misunderstandings and omissions; and the bidder’s solicitor’s letter was a request for information, but did not show the requisite level of knowledge to start time running.

Why is this case significant?

The lessons for contracting authorities are:

• provide written feedback to bidders—it is inherently less risky that oral feedback;

• avoid giving oral feedback if possible;

• invest time and care in producing quality debrief letters.

A copy of the judgement is here.

How Capsticks can help

Our procurement experts can assist you with all aspects of bringing or defending a procurement challenge. For more information about how we can help your organisation, please get in touch with Jane Barker to discuss further.