High Court refuses to grant mandatory injunction in procurement challenge

Dervla Broderick

On 14 July 2015, Mr Justice Coulson handed down a substantive judgment in a case brought against Milton Keynes Council (the “Council”) by a company challenging a procurement procedure in relation to the award of a £10 million framework agreement (Woods Building Services v Milton Keynes Council).  The court held that the Council’s tender evaluation process was fundamentally flawed and that the successful claimant, Woods Building Services (“Woods”), provided the most economically advantageous tender.

Following is decision on liability, the court heard arguments concerning the appropriate remedy. Woods contended that the Council should award the contract to it or, in the alternative, to award damages.  The Council disputed both applications.

Mr Justice Coulson’s judgment on remedy sets out five reasons why he considered it inappropriate to make a mandatory order for the award of the contract to Woods:

  • Such an order was not part of Woods’ pleaded case and it would be wrong to grant a remedy which had not been formally claimed;
  • Regulation 47I of the Public Contracts Regulations 2006 (“PCR 2006”), which sets out the remedies available to the successful claimant where the underlying contract has not been entered into, does not specifically provide for mandatory injunctions;
  • While the PCR 2006 do not prejudice any other powers of the court, such as ordering a mandatory injunction requiring the Council to enter into a contract with Woods, such an order would raise issues of supervision and enforcement;
  • It would be inappropriate to award Woods a contract arising out of a process which the court has found to be flawed; and
  • damages would be an adequate remedy as Woods can identify both their wasted costs and their loss of profit arising from the flawed procurement.

Notably, while Mr Justice Coulson emphasised that a mandatory injunction requiring a contracting authority to award a contract to a successful claimant would only be granted in very exceptional circumstances, he did not rule that such an injunction could never be appropriate in a procurement case.

The quantum of damages to be awarded to Woods will be assessed once the procurement process has been re-run as this may affect the amount claimed for loss of profit.

Woods Building Services v Milton Keynes Council [2015] EWHC 2011 (TCC) and Woods Building Services v Milton Keynes Council [No. 2: Remedy] [2015] EWHC 2172 (TCC).

A copy of the substantive judgment can be found here and a copy of the remedy judgment here.

Post By Dervla Broderick (16 Posts)

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