If you are considering challenging the procurement process are you aware that the courts will consider the public interest. The procurement regulations provide that,

where a legal challenge based on a breach of the procurement regulations has been raised following the completion of a tender process, the public body procuring the contract is prohibited from entering into the contract with the successful bidder until the legal proceedings are resolved, or the court grants an interim order lifting this prohibition.

In the case of Hastings & Co (Insolvency) Ltd v The Accountant in Bankruptcy, the defender's application for an interim order was granted.

The judgement reinforced the position that pursuers must have a strong case for a breach of the procurement regulations for the continuation of the prohibition on contract award.

The court found that:

• the pursuer had, at best, a weak prima facie case for a breach of the regulations and, importantly, even if the criticisms made by the pursuer were established, it would not mean that the pursuer would have been successful;
• consideration of the public interest supported the avoidance of delay in the introduction of the new contract which was expected to yield savings of public money and an improved service.

The court also considered:

• that a significant delay in the award of the contract would cause serious loss to the successful bidders, and they would have no right of recourse against the pursuer if its legal challenge ultimately failed;
• and acknowledged that the public interest in avoiding delay was not as strong in this case as it is in cases involving the provision of vital healthcare services, and the defender could have put arrangements in place for the provision of services in the interim. However, the court held that the public interest remained a relevant factor, particularly where there has been no fundamental breach of the regulations.

In the final paragraph of the judgement, the court clarified its position once and for all by saying that ?the public interest is unquestionably part of the balance of convenience the need for certainty in the procurement process and the avoidance of delay when a challenge does not have reasonable prospects of success are factors which weigh against the continuance of the prohibition?.

This is good news for public bodies and should make unsuccessful bidders think twice when considering legal challenges.

If you are embarking on a procurement process, or have recently been unsuccessful in a tender competition and would like some advice on challenging the procurement process, please contact us.