High Court orders expedited trial over procurement challenge against London Fire Brigade
In a departure from usual practice, the Technology and Construction Court of the High Court has declined a request by a contracting authority to lift the automatic suspension of contract award proceedings following a procurement challenge, citing the availability of an expedited trial date and the inadequacy of damages as a remedy in the event that the challenge is upheld.
The challenge has been bought by Draeger Safety UK Ltd, the incumbent supplier of respiratory protective equipment for the London Fire Brigade, a type of personal protective equipment that allows the wearer to breathe safely without inhaling hazardous substances, including smoke.
On 5 August 2020, the London Fire Brigade published a contract notice in the Official Journal of the European Union launching the procurement of a ten-year contract for firefighting equipment, together with repair and maintenance services.
The stated aim of the procurement was to obtain lighter and easier to use equipment to improve the safety of firefighters, and their ability to respond effectively to critical events in London.
By letter dated 25 March 2021, revised by further letter dated 19 April 2021 the London Fire Brigade informed Draeger it that its bid had been unsuccessful, and that it intended to award the contract to MSA Britain Limited.
On 23 April 2021 Draegar filed legal proceedings in the High Court challenging the London Fire Brigade’s procedural conduct of the procurement exercise; the set aside of the contract award decision to MSA Britain; award of damages to cover the net profits and overhead cost contribution it would have derived had it been awarded the contract; and/or, the full cost recovery of its bid costs.
At a preliminary hearing in the Technology and Construction Court of the High Court on 14 July 2021 Mrs Justice O’Farrell presiding ruled that there was a serious issue to be tried.
However, in a departure from other similar procurement challenges that have heard in the past, Mrs Justice O’Farrell declined London Fire Brigade’s request to lift the automatic suspension preventing it from awarding a contract to its preferred bidder, MSA Britain.
Handing down her ruling Mrs Justice O’Farrell recognised that this would cause some delay to the proposed procurement but the impact on London Fire Brigade’s overall RPE procurement strategy timeline would be largely minimised by the Court’s ability to offer an expedited trial date in October 2021.
This presented “the least risk of injustice” whilst also preserving the full range of judicial remedies available to her, dependent upon the outcome of the trial
Commenting, Arfon Consulting’s Managing Director, Alun Williams, highlighted that Mrs Justice O’Farrell’s decision to not to lift the automatic suspension, may be the harbinger of future judicial decisions to come.
“The judicial ruling in this case is entirely consistent with wider policy aspirations towards speedy resolution of procurement challenges, and for the application of a ‘balancing test’ in the interests of all parties when it comes to the lifting of automatic suspensions in these types of cases”
The Government’s Procurement Bill, trailed in last November’s Queen’s Speech, is expected to be introduced next month [September].
Amongst other measures, it is expected to contain provisions to speed up the procurement challenge review process and making it more accessible, whilst simultaneously capping the quantum of damages available to disgruntled bidders.
Photo by Matt Chesin on Unsplash
