10 November | Joseph Ward

What happens when two bidders challenge a public contract award?

The case

The Department applied to the High Court of Northern Ireland seeking an order lifting the automatic suspension from entering into the contract, as a result of the commencement of proceedings by an aggrieved bidder. The judge said it would be inappropriate to lift the suspension when the court had declined to do so in relation to a challenge to the same procurement brought by another bidder.

The court found where more than one bidder commences proceedings, the dismissal of the defendant’s application to lift the suspension in any of the actions prohibits execution of the contract with any party.

The court refused the application, but considered its merits. The plaintiff’s tender was rejected as it had failed to upload certain information. First4Skills claimed the defendant had failed to exercise its discretion to issue a clarification to obtain the missing information, in breach of the principle of proportionality, and the failure to issue it breached the principle of equal treatment, given that the defendant had allegedly requested missing information from other bidders.

The court concluded there was a serious issue to be tried, determinative of the question of where the balance of convenience was to be struck.

What this means

Acknowledging that this case raised novel and important issues, the court’s guidance as to how the automatic suspension is to be applied in the situation where multiple bidders commence legal proceedings is welcome. It is of note that the court found the defendant’s application entailed a misuse of the court’s process.

But the court did not address the scenario where the automatic suspension is lifted in relation to one bidder, and then another bidder brings proceedings.

It would presumably be open for the court to reach a different view on the appropriateness of the suspension in light of the facts relevant to the second bidder’s challenge. However, this is not confirmed in the judgment.