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 at issue (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 both Ireland (and in the UK jurisdictions under the UK Procurement Act 2023, and under the preceding regime), the application to Court for review of a contracting authority’s decision brings with it an automatic suspension precluding contract conclusion 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 at issue.
There is a significant body of case law on the automatic suspension in Ireland and the UK jurisdictions. The decision in each case is highly fact-dependent, but common issues which arise include (i) the nature of the public contract and of the public interest at issue; (ii) the question of how soon a trial of the substantive case can take place; and (iii) questions around the adequacy of damages.
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EU
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Directive 89/665/EEC
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Article 2 Requirements for review procedures
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Articles 2.3, 2.4, 2.5
3. When a body of first instance, which is independent of the contracting authority, reviews a contract award decision, Member States shall 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. The suspension shall end no earlier than the expiry of the standstill period referred to in Article 2a(2) and Article 2d(4) and (5).4. Except where provided for in paragraph 3 and Article 1(5), review procedures need not necessarily have an automatic suspensive effect on the contract award procedures to which they relate.5. Member States may provide that the body responsible for review procedures may take into account the probable consequences of interim measures for all interests likely to be harmed, as well as the public interest, and may decide not to grant such measures when their negative consequences could exceed their benefits. -
Article 2a Standstill period
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1. The Member States shall ensure that the persons referred to in Article 1(3) have sufficient time for effective review of the contract award decisions taken by contracting authorities, by adopting the necessary provisions respecting the minimum conditions set out in paragraph 2 of this Article and in Article 2c.
2. A contract may not be concluded following the decision to award a contract falling within the scope of Directive 2014/24/EU or Directive 2014/23/EU before the expiry of a period of at least 10 calendar days with effect from the day following the date on which the contract award decision is sent to the tenderers and candidates concerned if fax or electronic means are used or, if other means of communication are used, before the expiry of a period of either at least 15 calendar days with effect from the day following the date on which the contract award decision is sent to the tenderers and candidates concerned or at least 10 calendar days with effect from the day following the date of the receipt of the contract award decision.
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Article 2c Time limits for applying for review
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Where a Member State provides that any application for review of a contracting authority’s decision taken in the context of, or in relation to, a contract award procedure falling within the scope of Directive 2014/24/EU or Directive 2014/23/EU must be made before the expiry of a specified period, this period shall be at least 10 calendar days with effect from the day following the date on which the contracting authority’s decision is sent to the tenderer or candidate if fax or electronic means are used or, if other means of communication are used, this period shall be either at least 15 calendar days with effect from the day following the date on which the contracting authority’s decision is sent to the tenderer or candidate or at least 10 calendar days with effect from the day following the date of the receipt of the contracting authority’s decision. The communication of the contracting authority’s decision to each tenderer or candidate shall be accompanied by a summary of the relevant reasons. In the case of an application for review concerning decisions referred to in Article 2(1)(b) of this Directive that are not subject to a specific notification, the time period shall be at least 10 calendar days from the date of the publication of the decision concerned.
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Article 2 Requirements for review procedures
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Directive 89/665/EEC
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Ireland
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S.I. No. 130/2010 European Communities (Public Authorities' Contracts) (Review Procedures) Regulations 2010
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Consolidated Version of S.I. No. 130/2010 (Remedies Regulations)
See also S.I. No. 192/2015 – European Communities (Public Authorities’ Contracts) (Review Procedures) (Amendment) Regulations 2015 and S.I. No. 327/2017 – European Communities (Public Authorities’ Contracts) (Review Procedures) (Amendment) Regulations 2017, which amend SI 130/2010.
The following is an unofficial consolidated version of S.I. No. 130/2010:
ARRANGEMENT OF REGULATIONS
- Citation.
- Interpretation—general.
- Application of these Regulations to contracts and decisions.
- Persons to whom review procedures are available.
- Standstill period.
- Notices to unsuccessful tenderers and candidates.
- Time limits for applications to Court.
- Application to Court.
- Powers of Court.
- Rules of court.
- Declaration by Court that a contract is ineffective.
- Effect of declaration that a contract is ineffective.
- Alternative penalties.
- Non-exclusion of other remedies.
- Revocation.
EUROPEAN COMMUNITIES (PUBLIC AUTHORITIES’ CONTRACTS) (REVIEW PROCEDURES) REGULATIONS 2010
Notice of the making of this Statutory Instrument was published in
“Iris Oifigiúil” of 30th March, 2010.
I, BRIAN LENIHAN, Minister for Finance, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972), and for the purpose of giving effect to Council Directive 89/665/EEC (1 ), as amended by Directive 2007/66/EC (2 ), hereby make the following regulations:
Citation
1.—These Regulations may be cited as the European Communities (Public Authorities’ Contracts) (Review Procedures) Regulations 2010.
Interpretation—general
2.—(1) In these Regulations—
“contracting authority” has the same meaning as in the Public Authorities’ Contracts Regulations;
“Court” means the High Court;
“eligible person” has the meaning given by Regulation 4;
“Official Journal” means the Official Journal of the European Union;
“Public Authorities’ Contracts Regulations” means means the European Union (Award of Public Authority Contracts) Regulations 2016 (S.I. No. 284 of 2016);
“reviewable public contract” means a contract (including a framework agreement and a dynamic purchasing system) referred to in the Public Authorities’ Contracts Regulations, the awarding of which is governed by one or more of the Parts (or a Chapter or Chapters of those Parts) of those Regulations;
“Revised Remedies Directive” means Council Directive 89/665/EEC 1 of 21 December 1989, as amended by Directive 2007/66/EC 2 of the European Parliament and of the Council of 11 December 2007 and Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014;
“standstill period” has the meaning given by Regulation 5.
(2) For the purposes of these Regulations, a contract has been concluded when it has been entered into and is legally binding.
(3) For the purposes of these Regulations—
(a) a tenderer is concerned if he or she has not been definitively excluded from a contract award procedure, and
(b) a candidate is concerned if the contracting authority has not made information available to him or her about the rejection of his or her application before the notification of the contract award decision to the tenderers concerned.
(4) For the purposes of paragraph (3)(a), the exclusion of a tenderer is definitive if it has been notified to the tenderer in accordance with Regulation 6 and—
(a) has been declared lawful by the Court, or
(b) is not, or can no longer be, subject to a review procedure.
(5) A word or expression used in both these Regulations and the Public Authorities’ Contracts Regulations has, unless the contrary intention appears, the same meaning in these Regulations as in the Public Authorities’ Contracts Regulations.
Application of these Regulations to contracts and decisions
3.—These Regulations apply to decisions taken, after the coming into operation of these Regulations, by contracting authorities in relation to the award of reviewable public contracts, regardless of when the relevant contract award procedure commenced.
Persons to whom review procedures are available
4.—For the purposes of these Regulations, a person is an eligible person in relation to a reviewable public contract if the person—
(a) has, or has had, an interest in obtaining the reviewable public contract, and
(b) alleges that he or she has been harmed, or is at risk of being harmed, by an infringement, in relation to that reviewable public contract, of the law of the European Communities or the European Union in the field of public procurement, or of a law of the State transposing that law.
Standstill period
5.—(1) A contracting authority shall not conclude a reviewable public contract to which a standstill period applies under these Regulations within the standstill period for the contract.
(2) There is no standstill period for—
(a) a contract where the Public Authorities’ Contracts Regulations do not require prior publication of a contract notice in the Official Journal,
(b) a contract where the only tenderer concerned is the one who is awarded the contract and there are no candidates concerned,
(c) a contract entered into or awarded on the basis of a framework agreement in accordance with Regulation 33 of the Public Authorities’ Contracts Regulations, or
(d) a specific contract entered into on the basis of a dynamic purchasing system in accordance with Regulation 34 of the Public Authorities’ Contracts Regulations.
(3) The standstill period for a contract begins on the day after the day on which each tenderer and candidate concerned is sent a notice, in accordance with paragraphs (2) and (3) of Regulation 6, of the outcome of his or her tender or application.
(4) The duration of the standstill period must be at least—
(a) if the notice under Regulation 6 is sent by fax or electronic means, 14 calendar days, or
(b) if the notice is sent by any other means, 16 calendar days
(5) For the avoidance of doubt, nothing in the subsequent provisions of these Regulations enables a Court to make an order permitting a reviewable public contract to be concluded during the period specified in paragraph (1).
Regulation 55 of Public Authorities’ Contracts Regulations not affected
5A. Nothing in the preceding Regulation or Regulation 6 affects Regulation 55 (and, in particular, paragraph (2) of it) of the Public Authorities’ Contracts Regulations.
Notices to unsuccessful tenderers and candidates
6.—(1) The notice referred to in Regulation 5(3), or a notice to an unsuccessful tenderer for a contract based on a framework agreement or dynamic purchasing system, shall be as set out in this Regulation.
(2) Such a notice—
(a) shall inform the candidates and tenderers concerned of the decisions reached concerning the award of the contract, the conclusion of a framework agreement or admittance to a dynamic purchasing system, including the grounds for any decision not to award a contract for which there has been a call for competition, conclude a framework agreement, recommence the procedure or implement a dynamic purchasing system,
(b) shall state the exact standstill period applicable to the contract, and
(c) for each unsuccessful tenderer or candidate, shall include—
(i) in the case of an unsuccessful candidate, a summary of the reasons for the rejection of his or her application,
(ii) in the case of an unsuccessful tenderer, a summary of the reasons for the rejection of his or her tender.
(3) In the case of a tenderer who has submitted an admissible tender (that is, a tender that qualifies for evaluation under the rules of the relevant tender process), the summary required by paragraph (2)(c)(ii) shall comprise—
(a) the characteristics and relative advantages of the tender selected,
(b) the name of the successful tenderer, or, in the case of a framework agreement, the names of the parties to it, and
(c) in the cases referred to in Regulation 42(10) and (11) of the Public Authorities’ Contracts Regulations, the reasons for the contracting authority’s decision of non-equivalence or its decision that the works, supplies or services do not meet the performance or functional requirements.
(4) In the case of an unsuccessful candidate, the information to be provided under paragraph (2)(c)(i)may be provided by setting out—
(a) the score obtained by the candidate concerned, and
(b) the score achieved by the lowest-scoring candidate who was considered to meet the per-qualification requirements, in respect of each criterion assessed by the contracting authority.
(5) In the case of an unsuccessful tenderer, the information to be provided under paragraph (2)(c)(ii) and subparagraphs (a) and (b) of paragraph (3) may be provided by setting out—
(a) the score obtained by the unsuccessful tenderer concerned, and
(b) the score obtained by the successful tenderer in respect of each criterion assessed by the contracting authority.
(6) In the case of a framework agreement to which more than one tenderer has been admitted, the information to be provided to each unsuccessful tenderer under paragraph (2)(c)(ii) may be provided by setting out—
(a) the scores obtained by the tenderer concerned in respect of each criterion assessed by the contracting authority, and
(b) the scores obtained in respect of each criterion assessed by the contracting authority by the lowest scoring tenderer who was admitted to the framework.
(7) However, a contracting authority may decide to withhold any information referred to in paragraph (2)(c) regarding the award of a contract, the conclusion of a framework agreement or admittance to a dynamic purchasing system if the release of such information—
(a) would impede law enforcement,
(b) would otherwise be contrary to the public interest,
(c) would prejudice the legitimate commercial interests of a particular economic operator, whether public or private, or
(d) might prejudice fair competition between economic operators.
Time limits for applications to Court
7.—(1) Subject to any order of the Court made under a rule referred to in Regulation 10(2), an application to the Court shall be made within the relevant period determined in accordance with this Regulation.
(2) An application referred to in subparagraph (a) or (b) of Regulation 8(1) shall be made within 30 calendar days after the applicant was notified of the decision, or knew or ought to have known of the infringement alleged in the application.
(3) An application for a declaration that a contract is ineffective shall be made within 30 calendar days (commencing on the appropriate date determined in accordance with paragraph (4) or (5), as the case requires), in the following cases—
(a) where the contracting authority published a contract award notice in accordance with Regulations 50 and 51 of the Public Authorities’ Contracts Regulations, and, in the case of a contract awarded without prior publication of a contract notice in the Official Journal, on condition that the contract award notice sets out the justification of the contracting authority’s decision not to publish a contract notice;
(b) where the contracting authority notified each tenderer or candidate concerned of the outcome of his or her tender or application, and that notice contained a summary of the relevant reasons that complied with Regulation 6(2);
(c) the cases of a contract based on a framework agreement, and of a specific contract based on a dynamic purchasing system, where the contracting authority has given notice in accordance with Regulation 6(2).
(4) In the case mentioned in paragraph (3)(a), the period begins on the day after the notice is published in the Official Journal.
(5) In the cases mentioned in subparagraphs (b) and (c) of paragraph (3), the period begins on the day after the contracting authority gives the notice referred to in the relevant subparagraph.
(6) In any other case an application for a declaration that a contract is ineffective shall be made within 6 months after the conclusion of the relevant contract.
Application to Court
8.—(1) An eligible person may apply to the Court—
(a) for interlocutory orders with the aim of correcting an alleged infringement or preventing further damage to the eligible person’s interests, including measures to suspend or to ensure the suspension of the procedure for the award of the public contract concerned or the implementation of any decision taken by the contracting authority, or
(b) for review of the contracting authority’s decision to award the contract to a particular tenderer or candidate.
(2) If a person applies to the Court under paragraph (1), the contracting authority shall not conclude the contract until—
(a) the Court has determined the matter, or
(b) the Court gives leave to lift any suspension of a procedure, or
(c) the proceedings are discontinued or otherwise disposed of,
but this is subject to paragraph (2A).
(2A) Notwithstanding that—
(a) an application has been made under paragraph (1), and
(b) the matter concerned has not been determined by the Court,
the contracting authority may conclude the contract if, on application to the Court under Regulation 8A, the Court so orders.
(3) A person who is an eligible person in relation to a reviewable public contract that has been concluded may apply to the Court for a declaration that the contract is ineffective.
(4) A person intending to make an application to the Court in accordance with this Regulation shall first notify the contracting authority in writing of—
(a) the alleged infringement,
(b) his or her intention to make an application to the Court, and
(c) the matters that in his or her opinion constitute the infringement.
(5) A person who has applied to the Court under paragraph (1), (2) or (3) shall give the contracting authority concerned notice of the application by serving a copy of the originating motion on the authority as soon as reasonably practicable.
(6) Nothing in this Regulation prevents an eligible person or the contracting authority from applying to the Court for any other remedy that may be available in the particular circumstances.
Exception to prohibition in Regulation 8(2)
8A.(1) On application made to it under this Regulation by the contracting authority, the Court may, notwithstanding the matters referred to in Regulation 8(2A)(a) and (b), make an order permitting the contracting authority to conclude the contract referred to in Regulation 8(1).
(2) When deciding whether to make an order under this Regulation—
(a) the Court shall consider whether, if Regulation 8(2)(a) were not applicable, it would be appropriate to grant an injunction restraining the contracting authority from entering into the contract, and
(b) only if the Court considers that it would not be appropriate to grant such an injunction may it make an order under this Regulation.
(3) The Court may, if it considers just to do so, specify in the order it makes under this Regulation that the order shall operate subject to there being satisfied one, or more than one, condition that it determines to be appropriate and specifies in the order.
(4) A person who has applied to the Court under this Regulation shall give the eligible person concerned notice of the application by serving a copy of the originating motion on the eligible person as soon as reasonably practicable.
Powers of Court
9.—(1) The Court—
(a) may set aside, vary or affirm a decision to which these Regulations apply,
(b) may declare a reviewable public contract ineffective, and
(c) may impose alternative penalties on a contracting authority, and may make any necessary consequential order.
(2) The Court may make interlocutory orders with the aim of correcting an alleged infringement or preventing further damage to the interests concerned, including measures to suspend or to ensure the suspension of the procedure for the award of a public contract or the implementation of a decision of the contracting authority.
(3) The Court may set aside any discriminatory technical, economic or financial specification in an invitation to tender, contract document or other document relating to a contract award procedure.
(4) When considering whether to make an interim or interlocutory order, the Court may take into account the probable consequences of interim measures for all interests likely to be harmed, as well as the public interest, and may decide not to make such an order when its negative consequences could exceed its benefits.
(5) The Court may by order suspend the operation of a decision or a contract.
(6) The Court may award damages as compensation for loss resulting from a decision that is an infringement of the law of the European Communities or the European Union, or of a law of the State transposing such law.
Rules of court
10.—(1) The rules of court may provide for a preliminary procedure to decide whether an applicant under Regulation 8 is an eligible person in relation to a particular reviewable public contract.
(2) The rules of court may provide for the Court to grant leave, if the Court considers that there is good reason to do so, to make an application under Regulation 8 after the latest time permitted by Regulation 7(2).
Declaration by Court that a contract is ineffective
11.—(1) For the purposes of this Regulation—
(a) a Regulation 5(1) infringement is an infringement where—
(i) the relevant contract is one to which a standstill period applies, and
(ii) the contracting authority has concluded the contract during the standstill period, and
(b) a Regulation 8(2) infringement is an infringement where—
(i) a tenderer or candidate has applied to the Court in accordance with Regulation 8 for review of a contract award decision in relation to a reviewable public contract, and
(ii) the contracting authority has concluded the contract before the Court has made its decision.
(1A) The reference in paragraph (1)(b)(ii) to the contracting authority having concluded the contract (the ‘relevant act’) before the Court has made its decision does not include a reference to either of the following cases—
(a) a case in which the Court has made an order under Regulation 8A permitting the relevant act, or
(b) if such an order has been made but is specified to operate subject to one, or more than one, condition being satisfied, a case in which the relevant act complies with that condition or those conditions.
(2) Subject to paragraphs (3), (4) and (5), the Court shall declare a reviewable public contract ineffective in the following cases:
(a) the case where the contracting authority has concluded the contract without first publishing a contract notice in the Official Journal and concluding the contract without publishing such a notice is not permitted by the Public Authorities’ Contracts Regulations;
(b) the cases of a Regulation 5(1) infringement or a Regulation 8(2) infringement where the infringement—
(i) has deprived the tenderer or candidate applying for review of the possibility of pursuing pre-contractual remedies, and
(ii) was combined with an infringement of the Public Authorities’ Contracts Regulations that has affected the chances of the tenderer applying for a review to obtain the contract;
(c) a case referred to in subparagraph (c) or (d) of Regulation 5(2) where—
(i) there has been an infringement of Regulation 33(8)(c) or of any of Regulation 34(20) to (23) of the Public Authorities’ Contracts Regulations, and
(ii) the value of the contract concerned equals or exceeds the relevant value threshold set out for the time being in Regulation 5 of the Public Authorities’ Contracts Regulations.
(3) Paragraph (2)(a) does not apply where—
(a) the contracting authority considered that the award of a contract without prior publication of a contract notice in the Official Journal was permitted by the Public Authorities’ Contracts Regulations,
(b) the contracting authority published, in the Official Journal, a notice complying with paragraph (8) stating that it intended to conclude the contract, and
(c) the contract was not concluded before the end of the period of 14 calendar days beginning on the day after the day of publication of that notice.
(4) Paragraph (2)(c) does not apply where—
(a) the contracting authority considered that the award of the contract was in accordance with Regulation 33(8)(c) or Regulation 34(20) to (23), of the Public Authorities’ Contracts Regulations,
(b) the contracting authority sent a notice of the contract award decision, together with a summary of reasons complying with Regulation 6(2)(c) and, if applicable, Regulation 6(3), to the tenderers concerned, and
(c) the contract was not concluded before the end of the period of—
(i) 14 days beginning on the day following the day on which notice of the contract award decision is sent to the tenderers concerned if fax or electronic means are used, or
(ii) 16 days beginning on the day following the day on which notice of the contract award decision is sent to the tenderers concerned if another means of communication is used.
(5) Despite paragraph (2), the Court may decline to declare a contract ineffective if it finds, after having examined all aspects of the matter that it considers relevant, that overriding reasons relating to a general interest require that the effects of the contract should be maintained.
(6) Economic interests in the effectiveness of the contract may only be considered as overriding reasons if in exceptional circumstances ineffectiveness would lead to disproportionate consequences. For the purposes of this Regulation, economic interests directly linked to the contract are not overriding reasons relating to a general interest. “Economic interests directly linked to the contract” includes (but is not limited to)—
(a) the costs resulting from the delay in the execution of the contract,
(b) the costs resulting from the launching of a new procurement procedure,
(c) the costs resulting from the change of the economic operator performing the contract, and
(d) the costs of legal obligations resulting from the ineffectiveness.
(7) In the case of a Regulation 5(1) infringement or a Regulation 8(2) infringement, (being, in each case, an infringement not covered by paragraph (2)(b)), the Court may, after having assessed all aspects that it considers relevant, declare the relevant contract ineffective.
(8) A notice referred to in paragraph (3)(b)—
(a) shall be in the format set out in Commission Regulation 1150/2009[3],
(b) shall include—
(i) the name and contact details of the contracting authority,
(ii) a description of the object of the contract,
(iii) a justification of the decision of the contracting authority to award the contract without prior publication of a contract notice in the Official Journal, and
(iv) the name and contact details of the economic operator in favour of whom a contract award decision has been taken, and
(c) may include any other information that the contracting authority considers useful.
(9) The Court may make any order necessary in the interests of justice to ensure that proper payment is made for any work done, or goods or services provided, in good faith in reliance on a contract that has been declared ineffective.
Effect of declaration that a contract is ineffective
12.—(1) If the Court declares a contract ineffective, any contractual obligations not already performed are cancelled. Contractual obligations already performed are not affected.
(2) Paragraph (1) does not prevent the exercise of any power under which an order or decision of the Court may be stayed, but, if a declaration of ineffectiveness is stayed, then, at the end of the period during which the declaration is stayed, the contract shall be taken to have been ineffective from the making of the declaration.
Alternative penalties
13.—(1) The Court shall impose an alternative penalty if—
(a) under Regulation 11(5), it declines to declare a contract ineffective, or
(b) in the case of an alleged infringement referred to in Regulation 11(7), it finds that the infringement occurred but declines to declare the contract ineffective.
(2) The alternative penalty shall be either or both of the following:
(a) the imposition on the contracting authority of a civil financial penalty of up to 10 per cent of the value of the contract;
(b) the termination, or shortening of the duration, of the contract.
(3) The Court may take into account all the relevant factors, including the seriousness of the infringement, the behaviour of the contracting authority and any extent to which the contract remains in force. For that purpose, the Court needs to be satisfied of the relevant facts only on the balance of probabilities.
(4) A civil financial penalty payable pursuant to an order under paragraph (2)(a) shall be paid into the Central Fund.
(5) If the Court orders the payment of a civil financial penalty under paragraph (2)(a), the amount of the penalty may be recovered as a debt in any court of competent jurisdiction. For the purposes of such recovery, the order of the Court is conclusive that the amount of the penalty is due and payable by the contracting authority ordered to pay it.
(6) The award of damages is not an appropriate alternative penalty for the purposes of this Regulation.
Non-exclusion of other remedies
14.—Nothing in these Regulations affects any power of the Court to grant any other remedy in relation to a contract.
Revocation
15.—(1) The European Communities (Review Procedures for the Award of Public Supply, Public Works and Public Services Contracts) (No.2) Regulations 1994 ( S.I.No.309 of 1994) are revoked.
(2) Paragraphs (3) to (6) of Regulation 49 of the Public Authorities’ Contracts Regulations are revoked.
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Regulation 8 Application to Court
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(1) An eligible person may apply to the Court—
(a) for interlocutory orders with the aim of correcting an alleged infringement or preventing further damage to the eligible person’s interests, including measures to suspend or to ensure the suspension of the procedure for the award of the public contract concerned or the implementation of any decision taken by the contracting authority, or
(b) for review of the contracting authority’s decision to award the contract to a particular tenderer or candidate.
(2) If a person applies to the Court under paragraph (1), the contracting authority shall not conclude the contract until—
(a) the Court has determined the matter, or
(b) the Court gives leave to lift any suspension of a procedure, or
(c) the proceedings are discontinued or otherwise disposed of,
but this is subject to paragraph (2A).
(2A) Notwithstanding that—
(a) an application has been made under paragraph (1), and
(b) the matter concerned has not been determined by the Court,
the contracting authority may conclude the contract if, on application to the Court under Regulation 8A, the Court so orders.
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Regulation 8A Exception to prohibition in Regulation 8(2)
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(1) On application made to it under this Regulation by the contracting authority, the Court may, notwithstanding the matters referred to in Regulation 8(2A)(a) and (b), make an order permitting the contracting authority to conclude the contract referred to in Regulation 8(1).
(2) When deciding whether to make an order under this Regulation—
(a) the Court shall consider whether, if Regulation 8(2)(a) were not applicable, it would be appropriate to grant an injunction restraining the contracting authority from entering into the contract, and
(b) only if the Court considers that it would not be appropriate to grant such an injunction may it make an order under this Regulation.
(3) The Court may, if it considers just to do so, specify in the order it makes under this Regulation that the order shall operate subject to there being satisfied one, or more than one, condition that it determines to be appropriate and specifies in the order.
(4) A person who has applied to the Court under this Regulation shall give the eligible person concerned notice of the application by serving a copy of the originating motion on the eligible person as soon as reasonably practicable.
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Regulation 9 Powers of Court
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(4) When considering whether to make an interim or interlocutory order, the Court may take into account the probable consequences of interim measures for all interests likely to be harmed, as well as the public interest, and may decide not to make such an order when its negative consequences could exceed its benefits.
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Consolidated Version of S.I. No. 130/2010 (Remedies Regulations)
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S.I. No. 130/2010 European Communities (Public Authorities' Contracts) (Review Procedures) Regulations 2010
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UK
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Procurement Act 2023
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101 Automatic suspension of the entry into or modification of contracts
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(1) A contracting authority may not enter into a public contract, or modify a public contract or a convertible contract, if during any applicable standstill period—
(a) proceedings under this Part are commenced in relation to the contract, and
(b) the contracting authority is notified of that fact.
(2) The court may lift or modify the restriction in subsection (1) by order under section 102.
(3) The restriction in subsection (1) does not apply if—
(a) the proceedings at first instance have been determined, discontinued or otherwise disposed of, and
(b) the court has not made an order to extend the restriction.
(4) In this section “convertible contract” has the meaning given in section 74.
(5) See sections 51 and 76 for provision about standstill periods.
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102 Interim remedies
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(1) In proceedings under this Part, the court may make one or more of the following orders—
(a) an order lifting or modifying the restriction in section 101(1);
(b) an order extending the restriction or imposing a similar restriction;
(c) an order suspending the effect of any decision made or action taken by the contracting authority in carrying out the procurement;
(d) an order suspending the procurement or any part of it;
(e) an order suspending the entry into or performance of a contract;
(f) an order suspending the making of a modification of a contract or performance of a contract as modified.
(2) In considering whether to make an order under subsection (1), the court must have regard to—
(a) the public interest in, among other things—
(i) upholding the principle that public contracts should be awarded, and contracts should be modified, in accordance with the law;
(ii) avoiding delay in the supply of the goods, services or works provided for in the contract or modification (for example, in respect of defence or security interests or the continuing provision of public services);
(b) the interests of suppliers, including whether damages are an adequate remedy for the claimant;
(c) any other matters that the court considers appropriate.
(3) An order under subsection (1) may not permit a contract to be entered into or modified before the end of any applicable standstill period (see sections 51 and 76).
(4) An order under subsection (1) may provide for undertakings or conditions.
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101 Automatic suspension of the entry into or modification of contracts
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Procurement Act 2023
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England and Wales
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Teleperformance Contact Ltd v Secretary of State for the Home Department [2023] EWHC 2481 (TCC), (2023) 211 ConLR 113 (Constable J)
Region: England and Wales
Suspension Lifted? YES. High Court lifts automatic suspension on contracts for the provision of visa and citizenship application services
Key factors
- Losses of companies in the same group as the claimant company, which was an SPV, were not relevant
- Damages would be adequate for the claimant
- Damages would not adequately compensate the Defendant
- A further delay in the award of the contracts created a very significant risk of a gap in services
- While the claimant offered to extend service provision, the new contracts were intended to bring benefits (including enhanced security measures and improved technology)
- It was not necessary to determine the timetable with precision to determine that there was likely to be at least some real delay to the implementation of the benefits to be brought by the new contracts if matters awaited the outcome of the most efficient expedited trial
- Therefore, damages would not be adequate for the defendant
On whether losses to other entities can be taken into account
“41. I distil from the foregoing the following principles:
(1) at the most fundamental level, the jurisdiction to grant injunctive relief is subject to a broad discretion which permits the Court to grant it where it is just and convenient to do so;
(2) in most cases, the injury or prospective injury to consider, when asking in accordance with American Cyanamid whether damages would be an adequate remedy if an injunction is not granted and the right is or continues to be violated, is the injury suffered or to be suffered by the party whose is entitled to claim for the violation of the right;
(3) given the broad discretion, however, there may exceptionally be circumstances in which injury to third parties caused the violation of rights may be considered relevant, particularly where there is a nexus between such injury and intangible and reputational losses suffered by the claiming party, for which damages would be inadequate, as happened in Bath v Mowlem;
(4) when considering whether it is just in all the circumstances to confine the claiming party to their remedy in damages, the Court may look to the objective expectations created within the relevant relationship between the parties (whether by a contract, or by the regulatory regime giving rise to the obligations and available remedies, or otherwise).
42. In the circumstances of the present case, I do not consider it appropriate to consider losses suffered by TLScontact or the wider Teleperformance group as relevant to the question of adequacy of damages.”
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Indigo Services Ltd v Colchester Institute Corporation [2010] EWHC 3237 (Donaldson QC)
Region: England and Wales
Suspension Lifted? YES. High Court lifts automatic suspension on contracts for cleaning services at two education facilities
Key factors:
- The current contract, which was with the challenger, was due to expire and a further extension of that contract was not provided for and would amount to a new contract
- An ad hoc procurement could not be run in time to ensure service continuity
- It was more likely than not that the Respondent would succeed at trial on issues of causation and any loss of chance would not be much more than fanciful
[40]-[42]
“It is in my view clear that the contract provided only for one extension, which could have been – but was not – for a full 2 years. It does not provide for a further extension.
Indigo’s alternative submission, and that advanced at the hearing, is that an extension, even if not provided for in the contract, does not call for a public procurement process. That suggestion appeared to me counter- intuitive, since agreement of an extension, even if termed an amendment, would involve a contract for services to be rendered during a new period, and would therefore be a contract for new services. Counsel for Indigo argued however that his submission was supported by the decision of the ECJ in Pressetext Nachrichtenagentur GmbH v Austria, Case C-454/06 …
Far from supporting Indigo’s submission, the Court’s remarks in my view point to the contrary position. An extension of the contract into a new period of necessity “encompasses” services not previously covered by the contract, when the extension is not foreseen in the contract.
In a yet further argument, it was suggested that the Regulations would permit an ad hoc extension in a case of urgency. Reference to regulations 14 and 17 reveals however that, though in a case of extreme urgency an authority can dispense with publication of a contract notice and use a reduced version of the negotiated procedure, it must still comply with regulation 16(9) and (10), which import regulations 23, 24, 25, 26 and 30. It is not therefore possible to avoid a competitive procurement process, which might not be won by Indigo. Nor does it appear possible to complete any such process in time to meet the imminent deadlines to ensure the provision of cleaning facilities from 3 January 2010.”
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Millbrook Healthcare Limited v Devon County Council and Nottingham Rehab Limited [2025] EWHC 744 (TCC) (Howard KC)
Region: England and Wales
Suspension Lifted? YES. High Court lifts automatic suspension for £46m home care services contract.
Key factors
- Damages were adequate for the Claimant
- Claims of inadequacy of damages not substantiated
- Contract was not unique or prestigious
- Fact that no undertaking given by Respondent that any breaches would be sufficiently serious did not mean damages were inadequate at this interlocutory stage
Adequacy of Damages
Points made by the Claimant to establish prejudice were “made by mere general assertions, without supporting evidence” [13]
Loss of profit from the contract for the unsuccessful was “very much part of life” [14]
Lost revenues from the contract “will be quantifiable” and “uncertainties and complexities with quantification … do not mean any losses are irrecoverable or impossible to quantity fairly” [15]
The contract “was not unique, prestigious or the sole source of the Claimant’s workstreams” and the loss of one contract would not “undermine the Claimant’s entire business model or its ability to win new work from other local authorities” [16]
Concerns about a rushed transition to the new provider were not substantiated [16]-[19]
No cogent evidence to suggest that the award of the contract would have an impact on the structure of competition in the market [21]
Re sufficiently serious breach, the Defendant refused to concede, for the purpose of the Lift application, that any breach would be sufficiently serious. However, Howard KC decided that it was just to confine the Claimant to a damages remedy, while accepting that at the conclusion of the case, it might be held that any breach was not sufficiently serious to sound in damages. Referring to Braceurself Limited v National Health Service [2024] KB 914, there was nothing incoherent in an approach which held, at the interlocutory stage, that damages were an adequate remedy, and a final decision, where it was held that damages were not available because the breach was not sufficiently serious. As Coulson LJ had said in that case, at [114]:”That is not incoherent; it is the consequence of there being two different exercises (one interlocutory and one final), involving two different sets of evidence and two different sets of governing principles. They may produce differing results.” Howard KC also stated at [32]:
“Other than a preliminary conclusion on the adequacy of damages and the effectiveness of that remedy, I am not in any position to conduct a ‘crystal ball gaze’ of the respective merits of two rival bidders nor review the evaluation conducted by DCC to anticipate whether there was in fact any breach of the PCR 2015 in its assessment of any one of the pass/fail criteria or other scores or, if so, whether any such breach was (im)material, culpable or excusable. At this early stage, I cannot even assess whether there is a real risk of any breach not being found to be sufficiently serious…
[Whilst] the Claimant is entitled to effective remedy and fair process, those principles are not absolute. The principle of effective relief does not function as a guarantee or create any entitlement to a particular preferred remedy where there is none.
[There] is a system of remedies for breaches of procurement law but that does not mean that all remedies are universally available at all times.”
The Court held that as damages were adequate for the Claimant,”that is the end of the enquiry and there is no need to go on and consider adequacy of damages for DCC or the balance of convenience” [35]
Other Factors
The Court nonetheless said that damages would not be adequate for the Defendant and that the balance of convenience favoured lifting the suspension. It was also held that even if expedition could be granted for the trial, the earliest hearing date would be Easter 2026 ([45])
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Robert Heath Heating Limited v Orbit Group Limited [2024] EWHC 3039 (TCC) (ter Haar KC)
Region: England and Wales
Suspension Lifted: YES High Court lift suspension on contract for domestic heating services on the basis that damages would be an adequate remedy for the Claimant
Key Factors
- Damages were adequate for the Claimant
- No arguable case for loss of reputation
[75]-[79]
“In my judgment, contrary to those submissions, damages would be an adequate remedy for RHH if its challenges succeed.
This is not a case like the Bristol Missing Link case, where the claimant was a non-profit organisation. I have set out at paragraph 4 above the undisputed facts as to RHH’s financial situation: it is a moderately substantial company and is a subsidiary of a substantial group with a worldwide reach. The potential contracts with OGL were substantial, but if awarded would not have been a dominating part of RHH’s turnover.
Given the size of RHH and of the group of which it is part, I do not accept that even an arguable case for damages for loss of reputation is made out.
I accept that these would have been substantial contracts, and a useful base for RHH to expand its business: these are relevant matters in an assessment of damages. However, these are the sorts of issues with which the courts are used to dealing when assessing damages.
I also accept that assessment of damages may not be entirely straightforward, but that in itself is not sufficient to establish that damages would not be an adequate remedy, see the passages from the judgments of Stuart-Smith and Eyre JJ set out above. In my judgment this is not a case in which the number of uncertainties or variables that have to be brought into the calculation of the RHH’s lost chance mean that damages would not be an adequate remedy.”
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Draeger Safety UK Ltd v London Fire Commissioner [2021] EWHC 2221 (TCC) (O'Farrell J)
Region: England and Wales
Suspension Lifted? No. High Court maintains suspension on contract for respiratory protective equipment for London Fire Brigade
Key Factors
- Damages not an adequate remedy for the Claimant
- Though not unique or high value, contract being closely watched as setting the standard
- Expedited trial available
- Balance of convenience therefore favoured maintaining the suspension
“41. The evidence before the Court does not indicate that this procurement is unique or high value. However, it is being closely watched by a number of other fire and rescue services and is likely to be perceived as setting the standard for improved protective equipment in this sector. On that basis, it is arguable that, if the automatic suspension is lifted and Draeger is ousted from its position as the incumbent provider of breathing apparatus for LFB, it will suffer a loss for which damages are not an adequate remedy.”
“49. The public interest in the timely introduction of new protective equipment to implement operational improvements would be a very strong factor in favour of lifting the suspension. However, in this case, a significant factor is that the Court is able to offer the parties an expedited trial. When the matter was before the Court at the hearing on 14 July 2021, the Court could not accommodate a trial in October 2021, although it could have heard the case in December 2021. However, since the hearing, there have been settlements of other cases in the list and the Court can now offer a trial in October 2021 with the agreed estimate of 5 days.
50. It is recognised that this will cause some delay to the proposed procurement but the impact on LFB’s overall strategy will be limited.”
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The Halo Trust v Secretary of State for International Development [2011] EWHC 87 (TCC) (Akenhead J)
Region: England and Wales
Suspension Lifted? Yes. High Courts lifts suspension on £3.5m contract for demining in Cambodia
Key Factors
- No serious issue to be tried
- Damages would be adequate for Claimant
- Public interest in avoiding uncertainty and disruption to mine clearance in Cambodia
- Minimum 5-7 month delay before trial and judgment
- Whichever tenderer lost the contract would face substantial redundancies
- Delay in clearing mines could result in injury/death
- Disproportionate to delay contract given the relative weakness of the Claimant’s case on liability
- No suggestion of loss of reputation
Claimant failed the serious issue to be tried threshold ([54-[57])
“The first issue really relates to the contents of the e-mail dated 1 October 2010 from DFID to the tenderers to the effect that mine action funding could “be used to fund activities supplemental and clearly linked to mine action which contribute to realising development benefits for mine affected communities”. One example given was of digging a well on land cleared of mines where it is necessary to allow meaningful use of the land. It is fair to say that the strategy, the Framework Agreement documentation and the Cambodia Terms of Reference did not as such expressly spell that out but it is also fair to say that those documents did not specifically exclude it. It is certainly strongly arguable that, with the emphasis on releasing “mine affected land to make a measurable contribution to the socio-economic development of mine affected communities”, “putting land back into productive use” and improving or providing “value for money”, it was implicit that some elements of the funding might be used for such directly related activities. Reference to or reliance by Halo upon what was or was not said at the meeting in October 2009 before the strategy and the various contract documents were published seems to be misplaced. The strategy said what it did and it is not as such a contractual document or a document which has to be construed as if it was.
It is difficult to say the tenderers were not treated equally or in a transparent way. The e-mail of 1 October 2010 went to all tenderers and the wording in the letter is, however palatable its contents, clear in what it says. It is not obviously a fundamental departure from the earlier documentation. Although there was no explanation as to how much of the budget could be spent on this related development work, that was the same for all tenderers and there was no specific limit. That does not seem to involve an obvious breach of the Regulations.
The second issue relates to the increase in budget from £2.5 million to £3.5 million. All tenderers were treated the same in the sense that each was told about the increase and what in terms of tendering to do about it. It is not obvious how it can be said that there was a breach of the “transparency principle”, in that the increase was there for all tenderers to see and to apply their minds as to how to spend it. It should be borne in mind that the strategy had been in place since March 2010 and the Framework Agreement tendering and contract placement had been in mid-summer 2010. It was known that Cambodia was one of the countries where mine action would be required, that the current funding was due to expire in October 2010 and that there was to be a much greater concentration on linking actual mine clearance to development. Halo had been in Cambodia for many years and indeed was employing about 1000 people on mine clearance or related work. One probably needs therefore to review what happened in relation to the increase in budget in that context.
What is very surprising, in the light of the current complaint, is that Halo, which had never been slow to register concerns and complaints before, said absolutely nothing about any concerns in relation to timing or otherwise when it, together with the other tenderers, was told of the increase and the need to submit a tender addendum within about a week. Indeed, the complaint seems only to have been formulated in the Particulars of Claim for the first time. An immediate thought for most charities such as Halo with particular experience in a particular country like Cambodia would presumably have been to welcome an increase in the available funds of 40%. Halo’s argument is partly based on assertions that, because it operated to a large extent in areas of Cambodia where there was less development potential and interest, it was particularly prejudiced, compared with MAG, in being able to relate the extra £1 million funding to development. However, it is still surprising that if that was the case it did not ask DFID for some extra time; there is no particular reason to think DFID would not have granted some more time, as it had already granted some extra time and it would presumably have been in its interest to allow, say, another week or so for the tenderers’ further considered positions.”
Balance of Convenience ([61])
“Even if I had concluded that there was a serious issue to be tried, I would have found that the balance of convenience was such that DFID should no longer be restrained from entering into its proposed contract with MAG. My reasons, not in any order of importance, are as follows:
(a) There is a public interest in DFID being permitted to pursue its policy, which is a lawful one and not one which is in practice capable of judicial review. The policy, judged objectively, is a worthy one, even if there are alternative views as to that policy or to the priorities to be applied. The policy involves providing funds which not only go to clearing mines and other ordnance (and thus saving lives) but also to assist and encourage development of the areas affected by landmines which before clearance can not safely be used.
(b) Whilst there will always be a judgement to be made in any given case, formal and recognised procurement procedures which are designed to achieve value for money can be considered preferable to handing, albeit with strings attached, grants to institutions. It is a paradox that Halo in essence would prefer non-competitively tendered grant funding to be continued at least in the short term.
(c) It is almost inevitable that, if the suspension is continued until trial of the substantive matters in this case, there will be a minimum delay of 5 to 7 months before trial and judgement. There will therefore be continuing uncertainty not only for Halo and DFID but also for MAG as to what is going to happen. There is no certainty and, on the evidence, no probability that grant funding will be extended beyond 31 January 2011 to enable Halo and MAG to continue their current operations, either at all or at the same level as currently or necessarily to both of them. Such a period of uncertainty can only be bad for the people of Cambodia as well as the two charities. It is accepted on all sides that at the very least mine clearance is vitally important and it is undoubtedly also important that cleared areas are capable of being put to good use. Halo and MAG would, so far as their undertaking in Cambodia is concerned, both face real problems the longer this uncertainty continues. What will or may well be created by continuing uncertainty is that mine and land clearance may well be delayed or disrupted and people who might not have been injured and killed will be. In this context, the certainty created by the lifting of the statutory suspension significantly outweighs the uncertainty involved in continuing it. It needs to be borne in mind that all parties agreed in the Framework Agreement that time should be of the essence in relation to the Calldown Contracts.
(d) Whichever of MAG or Halo had “won” the Cambodian project, the other would have faced some real problems such as redundancies and the like. Both are currently operating there with funds from a number of sources but with key grant funding from DFID. What one would hope and indeed anticipate is that staff from the “losing” organisation would at least in part be able to transfer to the “winning” organisation.
(e) There is evidence from both sides in this case that there will be substantial redundancies faced by the losing tenderer. Unfortunately the evidence is not directly comparable. Halo produce evidence to show redundancies which they face if they failed to secure the Cambodia contract (over 440 staff) whilst there is evidence from MAG of the more limited effect of a continuing suspension for five months (over 70 staff). I assume that MAG’s losses would be greater if it ultimately lost or had lost the contract.
(f) Halo has, it says, some $55 million of funds annually with funds coming from some 13 countries, three institutional donors, some 13 private foundations as well as donations from members of the public. There is little if any reliable evidence from Halo that at least some further replacement funding from other sources could not be made available to enable it to continue its good work in Cambodia.
(g) Given the views which I have expressed as to the relative weakness of Halo’s case on liability, it would be disproportionate to delay a decision on this for 5 to 7 months.
(h) I am wholly satisfied that damages would be an adequate remedy even if ultimately Halo succeeded in these proceedings. Halo has pointed to redundancies and redundancy costs. Those are eminently quantifiable and provable together with other management and overhead losses. As Halo is a charity and non-profit-making institution, there would in any event not to be a loss of profits claim. There is no suggestion that Halo’s reputation, which appears to be good, would suffer or that charitable donations would go down from other sources as a result.”
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Newcastle Upon Tyne Hospital NHS Foundation Trust v Newcastle Primary Care Trust [2012] EWHC 2093 (QB) (Tugendhat J)
Region: England and Wales
Suspension Lifted? Yes. High Court lifts suspension on contract for diabetic retinopathy screening services
Key Factors
- Damages would be adequate for the Claimant
- Damages would not be adequate for the Defendants
- Offer of Claimant to continue service and take over from other provider who could not continue was not a solution
- Effects on prospective patients and those providing the service
- The case would require disclosure and experts and therefore delay in a trial
[42]-[47]
“The Defendants submit that the continuation of the suspension would have an effect not only upon prospective patients, but also upon those who are providing and will provide the service. For example, optometrists’ contracts require a 3 month period of notice, and notice was due to be served on 30 June. A number of concerns about current arrangements were raised by the External Quality Assessment Process operated by NHS Diabetic Eye Screening Programme.
The Claimant’s proposal that it should provide an interim service would in effect put the Defendants in the position of awarding to the unsuccessful bidder the contract which it had chosen to award to MIUK. This is not just either to the Defendants or to MIUK. I cannot decide on this application where the best interests of the diabetic population lie. The Defendants do not have a choice whether to provide the service or not. So it would not be just for the court to put the Defendants in the position where they had in practice no choice but to enter into a short term contract with the Claimant when they assert that they do not consider that that would be the proper course.
The Claimant submits that what the Defendants should have done is to obtain an early date for a trial, when the matter can be resolved on the merits, and not on the Cyanamid principles.
There are cases in which issues under the Regulations might be capable of resolution at a speedy trial. In the present case I am not convinced that that is so, having regard to the way that the Claimant advances its case. Disclosure of documents is required, but has not yet taken place. The parties have not delayed unduly in the exchange of statements of case, but the long vacation is nearly upon us. The issues raised require the court to investigate statistics with the assistance of experts in the field on both sides. It would be a serious matter for the court to conclude that the Defendants’ witnesses have misunderstood the statistics as Professor Taylor alleges that they have. These are matters which can require prolonged consideration if the court is properly to understand them.
The case advanced by the Claimant seems to me to involve novel issues of law. It is not unreasonable for Mr Williams to submit, as he does, that there could be delays in the form of possible amendments of case or even appeals.
The prospect of the merits of the dispute being resolved before the end of the year is not good. A delay of a year or more in the commencement of a contract which was due to commence on 1 October 2012, and to run for three years, is a very significant delay.”
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Covanta Energy Limited v Merseyside Waste Disposal Authority (No 2) [2013] EWHC 2922 (TCC) (Coulson J)
Region: England and Wales
Suspension Lifted? No automatic suspension applied at the time of this case. Injunction was granted preventing conclusion of a waste processing contract pending determination of the substantive case
Key Factors
- Damages would not be adequate for the Claimant; they would be virtually impossible to ascertain given the underlying claims, which included that the competitive dialogue procedure was not followed
- Damages would also be inadequate for the contracting authority due to environmental impact of using landfill rather than transforming waste into energy
- On balance of convenience, factors favouring an injunction: (i) ensuring compliance with procurement rules; (ii) damages not adequate for Claimant; (iii) Claimant would otherwise be deprived of a remedy prescribed by EU law; (iv) if damages awarded, taxpayers would be paying twice.
- A further delay of 9 months would be modest in the overall context, of 6 years of delay and a contract due to last 30-35 years
Damages not Adequate for Claimant ([50]-[55])
“The first question is whether damages would be an adequate remedy if Covanta do not obtain the injunction that they seek and then went on to be successful at trial. In my judgment, for the reasons noted below, damages would not be an adequate remedy.
Taking first Covanta’s case based on manifest errors in the tender evaluation, I accept that the court may be able to attempt to ascertain the loss thereby caused. But I consider that such a process would be difficult and imprecise. That is partly because of the number of errors alleged: in contrast to Exel, European Dynamics and the Lettings case when it came to trial ([2008] EWHC 1583 (QB)), where the errors were few in number and their effect was readily ascertainable, or thought to be so, the present case involves a large number of alleged errors. Thus, the effect of each of which would need to be evaluated before any assessment could be made as to the value (if any) of the loss of a chance. Moreover, for a contract such as this, it would be difficult to work out what Covanta’s actual rate of return might have been, because it would depend on so many variables. There is also a scaling factor to which Mr Giffin referred, and which I accept would also add another layer of difficulty. I therefore consider that the authorities noted in paragraph 44 above, which stress the difficulties of ascertaining the quantum of the loss of a chance claim in this sort of situation, and the relevance of those difficulties to the issue of adequacy of damages as a remedy, are directly in point here.
However, I am in no doubt at all that that conclusion is even more applicable in relation to the other element of the Covanta claim, namely the allegations that the competitive dialogue procedure was not followed by MWDA.
I consider that the ascertainment of damages arising from this part of the claim would be, to use Arnold J’s words in Morrisons, “virtually impossible”. That is because the court will have to look at each relevant exchange between MWDA and Covanta, which may run to hundreds or even thousands, to see if Covanta were materially misled by MWDA or whether, conversely, MWDA were making it plain what they wanted and how they expected Covanta to react. Each relevant potential miscommunication would need to be identified and analysed. Then, in order to calculate loss in respect of each such exchange or miscommunication, the court would have to ask itself whether, if either party had taken a different position, that would have made a difference to Covanta’s bid strategy and/or bid. In addition, it may also be relevant, where there was any lack of clarity from, or change of position by, MWDA, to consider whether, if they had taken a different course, that would have made a difference to SITA’s bid as well. This is because, sometimes, it is only possible to look at causation in an exercise like this by reference to the likely impact on each of the competing bids. The court would then have to decide whether, if there were such miscommunications or areas of confusion, a different approach by either MWDA or Covanta might have led to a different result or, at the very least, might have been part of a cluster of such miscommunications which could have led to a different result. Finally, the court would have to ascertain how the loss of chance could fairly be expressed and how it could be quantified, all by reference to a hypothetical tender that had never in fact been submitted.
It is also inherent in Covanta’s claim that important matters were never made clear to them by MWDA. In my view, that is very similar to those procurement cases where the complaints concern undisclosed tender evaluation criteria (although, for the reasons that I have given, the exercise is going to be much more complex and fact-specific here). Cases involving undisclosed criteria are always difficult to ascertain by way of damages: indeed it was just such a claim that Arnold J described in Morrisons as virtually impossible to calculate. Moreover, although I consider it to be of less significance here, there is also a possible issue of reputational damage, which was a factor which Vos J took into account in Alstom in reaching the same conclusion.
Accordingly, for those reasons, I conclude that damages would not be an adequate remedy for Covanta if MWDA entered into a contract with SITA before the court had reviewed the tender process and it turned out that Covanta’s criticisms were justified.
Effect of Further Delay ([71]-[76])
“As to any further delay, if the injunction is granted, the parties estimate that the trial of this case will take fifteen days. It can either be heard in the TCC in Leeds in March 2014, or I can hear it in Rolls Building in London in late April/May 2014. As I indicated during argument, I consider that the former is unrealistically tight, but I consider that the latter is achievable. A trial in April/May would lead to a judgment about the end of June. Therefore, the delay between now and the final result of the trial is something like nine months.
In my judgment, simply as a measurement of time, a further delay of nine months is a modest delay when set against the delays thus far of six years, and the fact that the RRC itself is due to last 30-35 years. That analysis means that, subject to the environmental impact of the further delay, I consider that this is a further factor in favour of granting the injunction until the review can be carried out. Does the environmental impact of the further delay change that?
The anticipated amount of waste for the purposes of the RRC is around 400,000 tonnes per annum. This estimate may be on the high side because similar waste tonnages across the United Kingdom are reducing, in part because of the economic conditions.
In 2012, MWDA put in place interim measures to try and ensure that, until the RRC is up and running, as much waste as possible is not sent for landfill. These interim measures were taken not because of these proceedings, because they pre-date the April 2013 contract notification. I can only assume that they were taken because MWDA were properly concerned about the extended procurement process and wished to put interim measures in place. At present, those measures mean that about 100,000 tonnes per annum of waste is being diverted away from landfill. It is plain that there is the capacity within those interim measures for greater tonnages than that to be diverted. Accordingly, a delay of nine months would equate to, at most, an additional 225,000 tonnes of waste not being diverted away from landfill. I calculate that in this way: 400,000 tonnes per annum, less 100,000 tonnes by way of interim measures, equals 300,000 tonnes waste going to landfill for a year. The period of further delay here is nine months or three-quarters of that, which produces a figure of 225,000 tonnes. That is, as I have stressed, a maximum likely figure, for the reasons that I have given.
The 225,000 tonnes of waste which would not go to EfW during the nine months has to be set in the context of the many millions of tonnes of waste which, every year, local authorities in the United Kingdom send to landfill. It has also to be seen in the context of the extended procurement process, so far six years and counting from the PQQ, and the delays from the estimated completion dates of three years, if one takes the estimated date of 2010, or five years if one takes the estimated completion date of 2008. Even if one takes the estimated start date of 2010, we are three years on from that. The three year delay equates, on these figures, to 900,000 extra tonnes of waste going to landfill. That 900,000 tonnes of waste must, on MWDA’s case, be waste which, if the procurement process had been concluded in accordance with their own estimates, would have been diverted to EfW.
Accordingly, for those reasons, I consider that, whilst the environmental impact is plainly a factor to be taken into account in the balance of convenience, it does not alter my view that, in the round, a delay of nine months in the context of all the circumstances of this case does not support the refusal of the interim injunction and is, in the round, a further factor in favour of granting the injunction.”
- DWF LLP v Secretary of State for Business Innovation and Skills [2014] EWCA Civ 900
- NP Aerospace Ltd v Ministry of Defence [2014] EWHC 2741 (TCC)
- NATS (Services) Ltd v Gatwick Airport Ltd [2014] EWHC 3133 (TCC)
- R (Edenred (UK Group) Limited) v HM Treasury [2014] EWHC 3555
- Group M UK Ltd v Cabinet Office [2014] EWHC 3659 (TCC)
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Advanced Business Software and Solutions Ltd v The Pirbright Institute [2014] EWHC 4651 (TCC) (Akenhead J)
Region: England and Wales
Suspension Lifted? Yes. High Court lifts suspension on contract for an integrated software system
Key Factors
- Damages were adequate for the Claimant – claims of importance of contract in getting foothold in the market, rejected ([16])
- Balance of convenience favoured lifting – urgency to replace outdated IT systems; significant delay if to await trial ([17]-[18])
“16. I find it very difficult to see that there is or is necessarily or obviously a serious or significant problem for ABS. I do not disagree that there is a perception that there may well be by representatives of ABS but ABS is a substantial organisation; it has on its own publicity a very wide-ranging series of contracts with public bodies; it has as I have indicated at least one contract with one of the 19 Research Councils listed; and it is said that by reason of not succeeding on this project they will lose the opportunity of being able to build on that by securing other contracts with these Research Councils. It is nebulous and speculative as to whether that is the case. Of course I cannot begin at this stage to know whether or not ABS would succeed or would have succeeded in relation to this procurement. If it is successful in this case and there is a re-run, it may still not be successful what might be called the third time round in this case. So it seems to me that that is not really a counterbalancing weight in respect of the ease at which its truly recoverable damages claim could be readily quantified. So if adequacy of damages alone was the test I would have little or no doubt that damages would be an adequate remedy.
17. But I go on to consider the balance of convenience as well. There has been a long and detailed discussion between the court as to whether or not in effect Pirbright could make do with its current systems whilst there was an expedited trial say in late February or early March 2015 as such. If the stay is lifted however it can get on and place the contract with Access and expedite very substantially the introduction of its new integrated system. I am persuaded on the evidence, particularly because Pirbright is a charity, that the balance of convenience favours the lifting of the suspension. What I am concerned about – and there is evidence before the court in effect – that currently scientists, researchers, have to use the current system; they are both – particularly the Protrack – are old systems; there are risks or perceived risks at least in them perhaps not surviving well and effectively through much of 2015. If the procurement, the placing of the contract, is delayed these researchers and scientists who do important work in general but for the public interest in this country will have to work with machines, with software, which is clearly old-fashioned and inefficient, and the longer that goes on the less use their work will be. Put another way, they will have to spend more time working with an old and outdated pair of systems which will mean that their time will be wasted dealing with that rather than the benefits of the new system which both ABS and doubtless Access have put forward as a good solution to the problems of the existing systems which Pirbright currently has. The detailed discussion about whether it would be appropriate to maintain the stay also partly depends upon an analysis of when it is likely that a new tendering process would be successful and a new system be implemented. If there was an expedited trial on liability in early March, and if ABS was successful, it would doubtless want a re-tendering process. That would take doubtless about the same time, if not more than the first tendering process, so that is from May to the end of July, so round about three months – maybe a bit more than that, unlikely to be less – so that assuming the judge who tries this is able to produce a reserved judgment say by the end of March it would be unlikely that any new tendering process would be completed much before the end of July, possibly going into August. Then the successful contractor would have to be mobilised to start installing, and I can see on that basis that Pirbright would be left with its old systems until well into 2016.
18. One of the systems, the Oracle system, is one which at the moment the Pirbright in effect has three through the SBS but there has been evidence before me there is certainly a risk that by December 2015 the current system will no longer be available through SBS, there will be a new system and the Pirbright would have to secure – possibly direct from Oracle – a licence to continue with the old system; alternatively it would have to go on to the new system available through SBS. Either way that would cost money and although that would be theoretically recoverable under a counter indemnity, it is money coming out of the charity’s cash flow in the short term which it should not be required in practice to have to forego. So far as the Protrack is concerned, the impression one gets is that if it has not got to the end of its useful life it is not that far away. I have no doubt that there is a chance that it might be capable of being adequately supported beyond the Spring of 2015 but whether supported or not there is little doubt that it is a system which on its own is nowhere near as efficient as the proposed combined integrated system, and the Pirbright would be left with that system for possibly the best part of 12 months longer than it would otherwise be with the inconvenience, difficulty, and loss of research and scientists’ time dealing with the old systems. Although there is always a balance to be weighed, I am satisfied here that the balance of convenience does fall with the adequacy of damages as an appropriate remedy for one which should lift the suspension. So the Pirbright’s application will be allowed.”
- OpenView Security Solutions Ltd v Merton London Borough Council [2015] EWHC 2694 (TCC)
- Counted4 Community Interest Company v Sunderland City Council [2015] EWHC 3898 (TCC)
- Solent NHS Trust v Hampshire County Council [2015] EWHC 457 (TCC)
- Bristol Missing Link Ltd v Bristol City Council [2015] EWHC 876 (TCC)
- Perinatal Institute v Healthcare Quality Improvement Partnership [2016] EWHC 2626 (TCC)
- Alstom Transport Limited v London Underground [2017] EWHC 1521
- Sysmex (UK) Ltd v Imperial College Healthcare NHS Trust [2017] EWHC 1824 (TCC), [2017] Med LR 569
- Lancashire Care NHS Foundation Trust & Anor v Lancashire County Council [2018] EWHC 200 (TCC)
- Bombardier Transportation UK Ltd v Hitachi Rail Europe Ltd [2018] EWHC 2926 (TCC)
- Circle Nottingham Ltd v NHS Rushcliffe Clinical Commissioning Group [2019] EWHC 1315 (TCC)
- Neology UK Ltd v Newcastle-upon-Tyne City Council [2020] EWHC 2958 (TCC)
- Aquila Heywood Ltd v Local Pensions Partnership Administration Ltd [2021] EWHC 114 (TCC)
- Draeger Safety UK Ltd v London Fire Commissioner [2021] EWHC 2221 (TCC)
- Vodafone Limited v Secretary of State for Foreign Commonwealth and Development Affairs [2021] EWHC 2793 (TCC)
- Kellogg Brown & Root Ltd v Mayor’s Office for Policing and Crime [2021] EWHC 3321 (TCC)
- Camelot UK Lotteries v The Gambling Commission [2022] EWHC 1664
- Medequip Assistive Technology Ltd v Kensington and Chelsea [2022] EWHC 3293 (TCC), [2023] BLR 127
- Boxxe v Secretary of State for Justice [2023] EWHC 533 (TCC)
- Robert Heath Heating Limited v Orbit Group Limited [2024] EWHC 3039 (TCC)
- Excel Europe Ltd v University Hospitals Coventry and Warwickshire NHS Trust [2010] EWHC 3332 (TCC)"
- Central Surrey Health Limited v NHS Surrey Downs CCG
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Involve Visual Collaboration Ltd v Secretary of State for Work and Pensions [2025] EWHC 2664 (Waksman J)
Region: England and Wales
Suspension Lifted? No. High Court refuses to lift automatic suspension on contract for audio-visual facilities
The Claimant was the incumbent; it was excluded from the competition for failing the technical element
Key factors
Damages would not be an adequate remedy for the Claimant
“being deprived of the New Contract would indeed expose it to serious losses of opportunity to develop its business in specific ways which could not be compensated by an award of damages” ([49])
Damages would not be adequate for the Defendant although
“it is not as if the position would be catastrophic for it, if it had to maintain the present video-conferencing service under the Existing Contract as opposed to moving to the New Contract” ([61])
An expedited trial could be held commencing on 13 January 2026; the existing contract was due to expire on 28 February 2026 but could, if necessary, be extended by up to a year
Defendant’s delay in issuing the Application to Lift was taken into account but in any event, a trial could be ready for 13 January 2026
The only prejudice to the Defendant was possibly
“the delay to bringing in the New Solution with the various benefits which that will entail” ([69])
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Teleperformance Contact Ltd v Secretary of State for the Home Department [2023] EWHC 2481 (TCC), (2023) 211 ConLR 113 (Constable J)
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EU - CJEU
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CGI IT UK Ltd v Department of Finance [2024] NIKB 49
Region: EU - CJEU
Suspension Lifted? NO. High Court refuses to lift automatic suspension on contract for a digitally enabled ICT solution to support land registration services
Humphreys J
Key factors:
Claimant came second and its overall mark was very close to that of the winner
No Francovich undertaking was provided by the contracting authority (i.e. an undertaking that any breach would be sufficiently serious)
The Claimant could succeed in the case and yet not be entitled to damages
“I therefore approach the question of whether it would be just to confine the Plaintiff to its remedy in damages on the basis that one possible outcome of this case is that the Plaintiff succeeds at trial on the basis of a breach which is not sufficiently serious to found an award of damages. If that were to occur, the contract would have been awarded to the wrong bidder and the Plaintiff would have spent considerable money and resources on a wholly Pyrrhic victory” ([44])
Existing contract could be extended and any damage in terms of higher costs would be covered by the claimant’s undertaking in damages
Contracting authority’s interest in upgrading its systems not given weight:
“The Defendant stresses that it wishes to upgrade and improve its services as soon as possible in order that its customers, and the public more widely, may avail of a proper modern digitalised system. This is no doubt a worthy aim but the urgency to implement it may stand in contrast to the poor contract management and repeated extensions which have characterised the existing arrangements” ([47])
An expedited trial could take place with a judgment within 6 months
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CGI IT UK Ltd v Department of Finance [2024] NIKB 49
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EU - General Court
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Amey Ow Limited V North Lanarkshire Council [2024] CSOH 66
Region: EU - General Court
Suspension Lifted? YES. Outer House of the Court of Session lifts automatic suspension on contract for roads and infrastructure maintenance
Lord Sandison
Key factors:
Claim as to reputational loss was unpersuasive and damages not otherwise shown to be sufficiently difficult to assess so as to weigh in the balance ([41])
Delay in the contract – for a period of 6 months, a reasonable estimate for the action to be determined – would adversely impact on the public interest by delaying the contribution to be made by the contract to wider economic and investment related activities ([43])
The approach in Scotland may place less importance on the question of adequacy of damages than is the case in England and Wales (see [34])
The automatic suspension constitutes the status quo (unlike in England and Wales) (see [36])
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Amey Ow Limited V North Lanarkshire Council [2024] CSOH 66
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Ireland
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CHC Ireland DAC v Minister for Transport [2023] IECA 229
Region: Ireland
Suspension Lifted? YES. Automatic suspension lifted for contract for provision of Irish Coast Guard aviation service
Costello J (upholding CHC Ireland DAC v Minister for Transport [2023] IEHC 457, Twomey J)
Key factors:
Risk to life
Certainty a vital matter when dealing with a crucial life-saving service
Risk that delay would mean winning tenderer could not perform contract in accordance with terms of its tender
While accepting that unsuccessful tenderer would not be adequately compensated in damages if it went out of business
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Word Perfect Translation Services Limited v The Minister for Public Expenditure and Reform [2018] IECA 35, [2019] 2 IR 305
Region: Ireland
Suspension Lifted? NO. Court of Appeal leaves suspension of contract for interpretation services in place pending trial
Hogan J (overturning Word Perfect Translation Services Limited v The Minister for Public Expenditure and Reform [2018] IEHC 1, Noonan J)
Key factors:
Damages limited to Francovich damages in procurement cases
Damages not an adequate remedy for the applicant
Damage may prove terminal to applicant company, where it would lose specialist employees
“[63] These competing factors are admittedly rather finely balanced on both sides. In this context, the fact that damages have not been shown to be an adequate remedy has an important – perhaps even a decisive – impact for the present appeal. Irrespective of whether the matter is viewed from the perspective of national or EU law, the right to an effective remedy is a constitutional fundamental: see Article 40.3.2° of the Constitution and article 47 of the Charter of Fundamental Rights of the European Union respectively. In the present case adherence to the standstill clause is, in reality, the only real remedy a claimant such as Word Perfect currently enjoys. It is true that reg. 9(1)(b) of the 2010 Regulations enables the court to declare a reviewable public contract “ineffective”, but it is equally clear from reg. 11 that this particular remedy is available only in quite special cases – such as where the authority concluded the contract in breach of the standstill clause – none of which apply to the present case.
[64] At all events, if that protection is lifted by court order then, in practice, Word Perfect would enjoy no real remedy, even if the matter were to go to trial and a material breach of the public procurement regime were ultimately to be established so far as the contract award was concerned. In these circumstances I am driven to the conclusion that the fact that damages are not an adequate remedy is decisive in terms of any evaluation of where, in Okunade v. Minister for Justice [2012] IESC 49, [2012] 3 I.R. 152 terms, the greatest risk of possible injustice lies.”
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Word Perfect Translation Services Limited v The Minister for Public Expenditure and Reform [2021] IECA 305, [2022] 3 IR 764
Region: Ireland
Suspension Lifted? NO. Court of Appeal leaves suspension of contract for Irish language translation services in place pending trial
Barniville J (overturning Word Perfect Translation Services Limited v The Minister for Public Expenditure and Reform, High Court, unreported, 23 September 2021, McDonald J)
Key factors:
Compelling urgency to proceed with the contract was absent
Early trial could be facilitated
No service interruption
Damages would be an inadequate remedy for the applicant, having regard to the complexity of the exercise in assessing damages and the number of variables involved in that exercise.
Significant injustice if applicant left to its remedy in damages
“[170] While it is invidious to compare the nature or order of the public interests involved here with those at issue in BAM PPP PGGM Infrastructure Cooperatie UA v National Treasury Management Agency [2015] IEHC 756, Powerteam Electrical Services Limited trading as Omexom v Electricity Supply Board [2016] IEHC 87, Beckman Coulter Diagnostics Limited v Beaumont Hospital [2017] IEHC 537 and Homecare Medical Supplies Unlimited Company v Health Service Executive [2018] IEHC 55, as important public interests were involved in all those cases and in this case, the real distinguishing feature between those cases and the present case, is the real and pressing urgency in those cases to proceed with the particular contract or competition. That overriding or compelling urgency is not, in my view, on the evidence, present in this case.
[174] I have concluded that the trial judge ought to have found that damages would be an inadequate remedy for the applicant, having regard to the complexity of the exercise in assessing damages and the number of variables involved in that exercise…
[175] I am also satisfied that the judge ought to have concluded that the balance of convenience or balance of justice lay in favour of keeping the suspension in place, in the particular circumstances of this case, and having regard to the likely duration of the suspension…
[177] The real question to be asked was whether it would minimise the risk of injustice to keep the suspension in place for a relatively short period until the trial (which we now know will take place on 11 January 2022), having regard to the potential injustice to the applicant, or to lift the suspension, in light of the evidence as to the use by public bodies of the recently expired 2016 Framework and the likely use by public bodies of the 2021 Framework, in circumstances where the framework is optional and many public bodies do conduct their own tender processes.”
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Homecare Medical Supplies Unlimited Company v Health Service Executive [2018] IEHC 55
Region: Ireland
Suspension Lifted? YES. High Court lifts automatic suspension on a 3-month bridging contract for the supply of disposable continence products; such bridging contract having been entered into to ensure supplies pending the outcome of review proceedings challenging the main contract award
Barniville J
Key factors:
Damages would be an adequate remedy for the Applicant
Damages would not adequately compensate the Respondent
On the balance of convenience, the short duration of the bridging contract, the interests of patients, the absence of an unqualified undertaking in damages and the fact that the Respondent was not prepared to extend the Applicant’s contract for public procurement reasons all favoured the lifting of the suspension
“74. I am satisfied that on the very particular and unusual facts of this case the balance of convenience clearly favours the lifting of the automatic suspension. I have reached this conclusion having carefully considered and reviewed all of the evidence and submissions advanced in this case and have reviewed relevant aspects of the arguments made by the parties in the proceedings in December 2017. I have reached this conclusion for several reasons including:-
(1) The highly unusual circumstances in which the HSE has had to provide for a bridging contract where, due to time and resource constraints, it has not been possible for judgment to be given in the application in the review proceedings and in the plenary proceedings before the end of the existing contractual arrangements through no fault of any of the parties;
(2) The potentially very short duration of the bridging contract, initially three months with provision for a further extension of three months, further extensions of three months up to a total duration of 12 months with provision for termination on one month’s notice. I note the HSE’s stated intention to terminate the bridging contract at the earliest opportunity on which it is lawfully possible for it to do so in the event that it is permitted to enter into the distribution contract with Freightspeed;
(3) The decision by the HSE that it will not roll over or extend the existing contracts beyond 31st January, 2018 for public procurement reasons. While there is a serious dispute between the parties as to whether the HSE can lawfully do so, and I have touched on the parties’ respective contentions in that regard earlier in this judgment, I cannot resolve that issue on this interlocutory application. There are arguments either way. However, the fact of the matter is that the HSE will not roll over or extend the existing contracts. If it does not do so, and if it cannot enter into the bridging contract for the short duration required, then there will be very serious implications for patients and end users of these very important medical products;
(4) I am persuaded by Dr. O’Sullivan’s evidence that it is critical that there be continuity in the supply of these products from 31st January, 2018, and I refer in paragraph to paras. 5, 6 and 7 of her affidavit in that regard, which I do not propose to repeat in this judgment but I refer to those three paragraphs in particular;
(5) The interests of patients and end users afford a very strong argument to my mind in favour of lifting the automatic suspension where the HSE has made it clear that it cannot or will not roll over or extend the existing contracts. The
correctness or otherwise of the parties’ respective legal contentions on Regulation 72 of the 2016 Regulations and on Pressetext may ultimately have to be decided at trial but I cannot conclusively do so at this stage in the proceedings. In my view it is critical that there is absolute clarity that these essential products are distributed to patients after 31st January, 2018. Like Costello J. in Powerteam, albeit on different facts, I conclude that any doubt or question over this issue should weigh and must weigh very heavily in the balance of convenience issue and clearly favours the lifting of the automatic suspension on the facts of this case;
(6) The absence of an unqualified undertaking as to damages is also a factor which I take into account and which favours the lifting of the automatic suspension;
(7) While there is undoubtedly a public interest in ensuring that public procurement law is fully complied with, I am not in a position at this stage of the proceedings to conclude that there is anything unlawful in what the HSE intends to do in relation to the bridging contract. This is a matter which will have to await determination at the trial;
(8) Finally, as far as the maintenance of the status quo is concerned, while I do not place enormous weight on this factor, it is the case that having regard to the approach which the court has to take on applications such as this, as explained by Costello J. in Powerteam, the status quo is that there is no suspension and so the lifting of the suspension will maintain the status quo. I do not have to fall back, however, on the maintenance of the status quo in view of my conclusions earlier and in light of the other factors which I have considered.”
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Coolsivna Construction Limited v Meath County Council (High Court, unreported, 26 July 2024)
Region: Ireland
Suspension Lifted? YES High Court lifts automatic suspension for Framework Agreement for the construction of social and affordable housing
McDonald J
Key Factors:
Bearing in mind that discovery had not been agreed, the earliest that a judgment could be estimated to be given on the substantive action was April 2025 (8-9 months from the date of the hearing of the application to lift)
Winning contractor was ready to commence the construction of 47 homes (the first contract under the Framework being automatically awarded to the winning bidder)
Construction on other projects could be commenced before end of 2024 if suspension lifted and mini-competition allowed to take place
“[It] seems to me that the continuation of the stay will have a significant impact at local level in delaying by eight or nine months the date when something of the order of 348 to 520 homes will be made available to those who are currently without a home they can call their own”
There was very little evidence of the damage that would be done to the Applicant if the suspension was lifted and what was put forward was said “in extraordinarily broad-brush terms”; there was no evidence as to how there could be a loss of reputation as a consequence of not being on the Framework; there was no evidence of the Applicant being at risk of losing valuable staff
The Notice Party did provide evidence of loss of staff if the automatic suspension remained in place
The Court did not accept the contention that damages would not be available to the Applicant, particularly where a Francovich undertaking had been given by the Respondent
But the Court accepted that damages would not be a wholly adequate remedy: “I’m therefore prepared to accept that notwithstanding what I have said about the availability of damages to be assessed on the basis of a loss of a chance, an award of damages will not completely compensate Coolsivna if it ultimately succeeds at trial and in the meantime no stay is placed on the award of the Framework Agreement. It seems to me that I should accept that while Coolsivna has a remedy in damages, the remedy is in fact an imperfect one and one which is not wholly adequate to compensate it if ultimately successful in the proceedings, and that is therefore a consideration that must be weighed in considering where the balance of justice lies.”
However, other factors supported a lifting of the automatic suspension, including (i) the position of the Notice Party; (ii) the real risk that it would be impossible to restore the status quo ante; (iii) the very important public interest in giving effect to the orderly implementation of measures which were prima facie valid; (iv) the Council’s interest in implementing a project which took several years of preparation; (v) the extra time that would be required to conduct individual tenders for construction projects outside the Framework; (vi) the very obvious and pressing public interest in addressing the homelessness crisis; (vii) the fact that though imperfect, damages were available as a remedy for the Applicant; (viii) adverse consequences for the Respondent could not be remedied by an award of damages.
The Applicant’s interests were “far outweighed” by the importance of progressing the housing projects.
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Construcciones Y Auxiliar De Ferrocarriles S.A. v Iarnród Éireann - Irish Rail [2025] IEHC 645 (Twomey J)
Region: Ireland
Suspension Lifted? Yes. High Court lifts automatic suspension on train construction and maintenance contract
Key Factors
If the suspension was not lifted, it was unlikely that the contract would be signed at all (due to the unavailability of production slots and the requirement for EU funding to be drawn down by a certain date)
If the contract was not signed by 30 November 2025, it was likely that €165 million in EU funding would be lost
“[Unlike] the usual suspension-lifting cases, CAF, if it is successful in having the suspension continued, and then is successful at the trial, is not going to benefit from the Contract. This is because, based on the evidence before this Court, the Contract will be extinguished, since the EU Funding for same is unlikely to be available” ([52])
The Applicant was not prepared to offer an undertaking as to damages to cover this €165 million sum
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CHC Ireland DAC v Minister for Transport [2023] IECA 229
Relevant Factors in the English Cases
Date of Trial
Early trial supports maintaining the suspension
Delay to trial supports lifting the suspension