In summary if a dissatisfied economic operator brings a claim against a contracting authority, the latter cannot simply abandon the procurement process to avoid the claim.
Amey Highways Ltd v West Sussex County Council [2019] EWHC 1291 (TCC) (24 May 2019) (bailii.org)
Amey Highways Ltd v West Sussex County Council [2019] EWHC 1291 (TCC). The dispute arose after the Claimant (Amey Highways Ltd) was narrowly unsuccessful with its bid to be awarded a contract which was known as the “Highways Term Service Contract 2018-2028” (“the Contract”). As a result of this decision, the Claimant brought an action alleging that its score should have been higher than the successful bidder’s.
Consequently, the Contracting Authority gave notice indicating that it was “terminating” the procurement in the hope that this action would defeat any claim brought by the Claimant before allowing it to start the procurement again
The judgment
It is important to note that the Court held that the Contracting Authority did not act “manifestly erroneously” by taking the abandonment decision and nor did it breach its obligations of equal treatment and transparency as set out by the Public Contracts Regulations.
However, contrary to this, the Court emphasised that the abandonment decision had no effect in relation to any causes of action which had arisen prior to the date of this decision.
It therefore follows that the Council’s abandonment of the procurement process failed to automatically extinguish Amey’s existing claim. This does not mean that Amey has won, merely that their claim can now proceed through the Courts (or be settled, or course).
In2 the bargain 