Automatic suspension in procurement cases

The European public procurement regime – applied here by the Remedies Regulations 2010 – envisages that instituting proceedings to challenge the award of a procurement contract will automatically suspend the award of that contract. As a result, in OCS v DAA, the Supreme Court held that the court had no jurisdiction to lift the automatic suspension.

These regulations were amended in 2015 to allow a contracting authority to make an application to lift the automatic suspension. However, the test to be applied by the courts in deciding whether to lift the automatic suspension has been the subject of some debate.

New directions in practice

Until recently, a number of High Court cases had applied the 'Campus Oil' test in considering whether to maintain the suspension of a contract. This meant that the onus rested on the disappointed tenderer to show, firstly, that there was a fair issue to be tried. The plaintiff would also have to demonstrate that damages would not be an adequate remedy if successful, and that the balance of convenience was in favour of granting the injunction.

In Word Perfect, the Court of Appeal took a significant stance on the key question of whether damages would be an adequate remedy for plaintiffs in these cases, writes barrister Aoife Beirne. Looking at the context and detail of the case for the Gazette, Beirne argues that it may well result in the reversal of previous jurisprudence on the lifting of automatic suspensions.

• Read the full article in the April 2018 Gazette

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