Security contract procurement gives Northern Ireland cause for alarm2012 will be in an interesting year in the public procurement challenge arena as the difficult economic conditions continue and dissatisfied bidders seek recourse to the courts to protect their positions using the tools at their disposal under the procurement rules. Contracting authorities will want to watch this space with interest. Recent surveys have indicated that public sector buyers generally believe that the Remedies Directive has led to more challenges and complaints from bidders about award processes. This is certainly true in the very active litigation arena of Northern Ireland, which continues to see cases and deal with issues which have not yet been considered anywhere else in the UK.
One of the new remedies introduced in 2009, automatic suspension of a contract award decision arises where proceedings are issued in relation to the authority's "decision to award the contract", where the contracting authority has become aware that the claim has been issued and that it relates to that decision. In practice, the challenger will generally become aware of the decision to award through the standstill letter, or, in the context of Part B or other exempt contracts, the award notification letter.
Where proceedings are issued, the award process is automatically suspended until the first instance court hearing. The authority can apply to the Court to have the suspension lifted - if it chooses not to then the suspension will stay in place until the first substantive hearing.
The first case to overturn the contract award decision under the Remedies Directive is Resource (NI) v Northern Ireland Courts & Tribunals Service (2011). In this case, Resource challenged the award decision relating to a (Part B services) contract for security and ancillary services for 23 courts throughout Northern Ireland. The Courts Service notified Resource of its intention to award the contract to G4S, who issued proceedings, upon which the Court Service sought to have the suspension lifted.
This application was refused because the Court considered that Resource had raised 'serious issues' about the evaluation and scoring decisions taken by the Court Service. At the next hearing, the Court held that the contract award decision should be set aside because of 'manifest errors' in the scoring mechanism and the way in which the scoring had been undertaken.
This case is interesting for two reasons - firstly, the majority of other decisions have seen the challenger fail to sustain the automatic suspension where the authority has sought to have it lifted - on the basis that the bidder has failed to demonstrate that damages would not be an adequate remedy and that the general interest was better served by maintaining the suspension (in accordance with the longstanding American Cyanmid tests for an injunction). Secondly, the readiness with which the court has overturned this contract award decision shows a changing approach to the line of pro-authority cases from London, where the bidder has had to fight hard to prove that the Draconian sanction of cancellation of the award decision should be granted.
This article first appeared in Government Opportunities, please click here to view this.
For more information on this or any other procurement issue you may be facing, please contact David Hansom, Partner on 020 7665 0808 or your usual contact at Veale Wasbrough Vizards. | 
