The case of Glasgow Rent Deposit & Support Scheme against Glasgow City Council and Ypeople (decided on 6 December 2012) highlights the court's reluctance to delay a contract award because of an alleged breach of the procurement regulations where this would be detrimental to the public interest.

GCC tendered for a service providing increased access to housing for the homeless and specifically the provision of a deposit guarantee scheme and temporary furnished accommodation. The pursuer raised the action and asked that the decision to award the contract be set aside. The legal challenge meant that the contract award procedure was suspended and GCC asked the court to grant an order ending the suspension in the public interest.

The court stated that there was no dispute between the parties as to the correct approach to be adopted. The court was required to consider the respective strengths of the parties' cases, the balance of convenience, whether damages might be an adequate remedy, and the public interest.

The pursuer argued that if the public interest in avoiding delay and disruption to the award of contracts always prevails, the effect of the regulations is diminished. However, the court, finding in favour of GCC, stated that this argument ignores the fact that in many cases damages will be an appropriate remedy (instead of setting aside the decision to award the contract). The court considered that its support for the defender in this case (and others like it) may be due to the fact that there is no allegation of a serious breach of the basic principles of equality, non-discrimination, transparency and proportionality. Further, if the suspension of the process is allowed to continue for a lengthy period while the court considers the issues, the pursuer obtains its desired result by default, because any material delay pending a final resolution will often force the defender to abandon the process and re-tender.

The court quite rightly ended the prohibition on awarding the contract. This is a good example of the court considering the consequences of a suspension of the procurement process, and bringing this to an end where its continuance is having a detrimental effect which outweighs the impact on the pursuer of the alleged 'breach'.

If you are embarking on a procurement process, please contact us for advice to ensure your process complies with the regulations.