The issue of proceedings by BML in February 2015 triggered the automatic suspension under Regulation 47G of the Public Contracts Regulations 2006, preventing the Council from entering into the contract with Refuge. On 26 March 2015, Coulson J maintained the suspension in favour of BML meaning that the Council remained prevented from entering into the contract with the winning bidder pending the final resolution of the claim, whether by way of a final judgment from the Court or via a negotiated settlement between the parties.
What then took place between the parties was a period of co-operation to dispose fairly of the issues between them.
The Council agreed to conduct a full re-evaluation of the two bids, using a newly-convened, independent evaluation panel overseen by an independent moderator, in exchange for which BML agreed to discontinue the claim. The previous winning bidder signed up to this agreement which meant both bidders endorsed the transparent and thorough re-evaluation commissioned by the Council, and agreed to abide by its outcome. Following the re-evaluation by the independent panel, BML's bid has been declared the most economically advantageous tender and BML has entered into the new contract with the Council.
Obtaining meaningful remedies in procurement challenges – remedies which endure beyond the initial automatic suspension and which actually achieve an enduring positive outcome for the clients – has been the subject of debate. Indeed, the Court decision to maintain the suspension has been described as a paradigm case, and at the time was quite notable in turning the tide of decisions lifting the suspension. Of real interest now to practitioners and contracting authorities alike is the co-operative manner in which the parties have achieved a solution in a fair and transparent way. For economic operators, the case shows that procurement challenges can be a good use of resources in achieving enduring successes, beyond the initial positive outcome increasingly reached by bidders of successfully resisting the application to lift the automatic suspension.
Bevan Brittan's specialist procurement litigation team has considerable experience of advising bidders and contracting authorities on challenges under the Public Contracts Regulations 2015, including dealing with pre-action correspondence and disclosure requests, applications to lift the automatic suspension, the management of all stages of High Court litigation, and pursuing alternative dispute resolution.