The automatic suspension is a central feature of both the EU and UK remedies regimes. It automatically comes into effect on the bringing of legal proceedings and suspends the contract, meaning that the contracting authority is precluded from concluding the contract with the winning bidder.
In the EU regime, the Remedies Directive (89/665) emphasises the importance of so-called “pre-contractual” remedies. The rationale is that if the tender process or award decision was unlawful, the best remedy is one which is granted before any contract has been concluded and which affords the successful applicant an opportunity to obtain the contract (or, at least, ensure that the contract is not concluded on an unlawful basis). Article 2 of the Remedies Directive requires Member States to “ensure that the contracting authority cannot conclude the contract before the review body has made a decision on the application either for interim measures or for review.” That automatic suspension must end no earlier than the expiry of the standstill period.
In the UK, section 101 of the Procurement Act 2023 also imposes an automatic suspension once proceedings have been commenced. This continues the position that applied previously under the 2015 Public Contracts Regulations.
The automatic suspension lasts until such time as the application for review is determined or the Court lifts the automatic suspension. The first question for a contracting authority faced with proceedings is whether it should apply to lift the automatic suspension. If it does so, the Court will essentially determine an injunction application, faced with deciding whether the suspension should remain in place pending the determination of the proceedings, or whether the suspension should be lifted so as to permit the contracting authority to conclude the contract and leave the claimant to a remedy in damages.
There is a significant body of case law on the automatic suspension. We provide an extensive review of this area, focusing on judgments of the English, Northern Irish, Scottish and Irish courts. Coverage is provided of over 50 judgments, with in-depth analysis of the weight given to different factors and how they are considered and applied by the courts, including:
- The Burden and Standard of Proof
- The Merits of the Case
- Reputational Damage
- The Prestige of the Contract
- Difficulties in Assessing Damages
- The Sufficiently Serious Breach Question
- The Timeline to Trial
- External Funding for the Contract
- The Public Interest
- Benefits of the New Contract
- The Interest of the Successful Tenderer
- Importance of Compliance with Public Procurement Law