River Ridge Recycling (Portadown) Ltd and ARC21
The case relates to an award of a waste contract by Arc 21 (βππ΅π² ππππ΅πΌπΏπΆππβ) using a dynamic purchasing system (DPS). The Authority is a joint committee appointed by six councils (including Belfast City Council) to discharge certain waste related functions.
The procurement was subject to the Public Contracts Regulations 2015. The Authority did not observe a standstill period for the award, as standstill is not mandatory for awards from a DPS. By the time the claimant was notified they had been unsuccessful, the Authority had already signed a contract with the winning bidder a few days earlier.
The claimant was an incumbent provider to Belfast City Council. They sought an interim injunction to stop the new contract going ahead, along with a declaration of ineffectiveness and damages. This judgment dealt with their interim injunction application (which was necessary as there is no automatic suspension for contracts awarded under a DPS).
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The Court found that the wording of Regulation 96 did not curtail its jurisdiction to grant injunctive relief. However, in this case, it declined to do so. That followed a consideration of the same “American Cyanamid Case” principles as an application to lift the automatic suspension would involve. The Court found that damages would constitute an adequate remedy for the claimant. However, the winning bidder’s potential losses would not be compensatable in damages – the injunction would cause them “irredeemable damage”. The Court noting for example that it would place them in breach of onwards contracts and thus likely to be sued. This tipped the balance decisively in favour of not granting injunctive relief.
A point of note: CCS guidance “strongly recommends” voluntary standstill for DPS call-offs (even though they are not required by the regulations) to protect against possible ineffectiveness claims.
In2 the bargain 