Citation: [2022] EWHC 2471 (TCC)
Summary of Facts
The Defendant procurement body applied for an order that the Claimant bidder provide an undertaking in damages in respect of the Defendant’s agreement to pause a procurement competition pending the trial of a claim that the Claimant’s exclusion from the process was unlawful.
The Defendant conducted procurement for the NHS in England and had launched a procurement competition in which the Claimant intended to participate. Bidders were required to lodge bids online via an e-portal. An employee of the Claimant uploaded a document that formed part of the Claimant’s bid on to the e-portal but in the wrong place. When he tried to upload it to the correct place, the e-portal would not permit the same document to be uploaded in two locations. The employee sent a message via the e-portal six minutes before the deadline asking for help. The message was acknowledged 52 minutes after the deadline, but the matter was not resolved. The Claimant was excluded from the competition. It challenged the decision as unlawful, issued a claim for damages, and applied for interim relief suspending the procurement process under the Public Contracts Regulations 2015 Pt 3 (6) reg.96(1)(c) pending determination of the substantive claim. The parties asked the court for expedition and a specific trial date and gave a time estimate of 1.5 days. At the hearing of the suspension application, it became clear that a trial date slightly later than the one requested was available. The Defendant then agreed to pause the procurement process until the substantive matter was decided. It asked the court to order the Claimant to provide an undertaking in damages.
Summary of Facts
The Defendant procurement body applied for an order that the Claimant bidder provide an undertaking in damages in respect of the Defendant’s agreement to pause a procurement competition pending the trial of a claim that the Claimant’s exclusion from the process was unlawful.
The Defendant conducted procurement for the NHS in England and had launched a procurement competition in which the Claimant intended to participate. Bidders were required to lodge bids online via an e-portal. An employee of the Claimant uploaded a document that formed part of the Claimant’s bid on to the e-portal but in the wrong place. When he tried to upload it to the correct place, the e-portal would not permit the same document to be uploaded in two locations. The employee sent a message via the e-portal six minutes before the deadline asking for help. The message was acknowledged 52 minutes after the deadline, but the matter was not resolved. The Claimant was excluded from the competition. It challenged the decision as unlawful, issued a claim for damages, and applied for interim relief suspending the procurement process under the Public Contracts Regulations 2015 Pt 3 (6) reg.96(1)(c) pending determination of the substantive claim. The parties asked the court for expedition and a specific trial date and gave a time estimate of 1.5 days. At the hearing of the suspension application, it became clear that a trial date slightly later than the one requested was available. The Defendant then agreed to pause the procurement process until the substantive matter was decided. It asked the court to order the Claimant to provide an undertaking in damages.
