In Bristol Missing Link Ltd v Bristol City Council, the Hon. Mr Justice Coulson has outlined his reasons for refusing an application by Bristol City Council (the “Council”) to lift the suspension on its award of a contract pending resolution of a procurement dispute.
The claimant in the main proceedings, Bristol Missing Link Limited (“BMML”), is challenging the procurement of a significant contract for domestic violence and abuse support services in Bristol under the Public Contracts Regulations 2006 (the “Regulations”). BMML, the incumbent service provider, is a community benefit society which has provided domestic abuse support services in Bristol on a not-for-profit basis for around 16 years. The defendant, Bristol City Council, wishes to award the contract to another tenderer, Refuge. Under Regulation 47G(1) an automatic stay has prevented the Council from entering into the proposed contract with Refuge. Bristol City Council applied to lift that automatic stay at a hearing in the High Court on 26 March 2015.
The High Court referred to recent case law which has established that the approach to be adopted by the court when determining an application to lift the automatic suspension is essentially the same as the test as to whether or not to impose an interim injunction, adopting the principles in American Cyanamid Co v Ethicon Ltd (No. 1)  AC 396. However, it was also noted that, given the importance attributed to it by EU law, the remedy available to an unsuccessful tenderer is a matter which must be taken into account when testing the balance of convenience.
The High Court rejected the Council’s claim that BMLL’s case was hopeless and did not raise a serious issue. It found that the Council had a number of difficulties in mounting this attack on BMLL’s claim, including a failure to engage with the detail of the claim and a failure to provide relevant evidence on the tender process. The High Court followed the reasoning put forward in the recent case of Solent NHS Trust v Hampshire County Council in finding that BMLL’s claim is neither obviously weak nor obviously strong, but plainly raises a serious issue to be tried.
In testing the balance of convenience, the High Court took account of the fact that BMLL is a non- profit-making organisation which included no amount for profit in their tender. A consequence of this is that if the contract suspension was lifted, BMLL would have no claim for anything other than nominal damages. On the other hand, the disadvantages to the Council of not lifting the suspension were either non-existent or negligible. The delay would not be significant and, most importantly, there was no evidence that such a delay would be damaging to users of the services provided under the contract.
Bristol Missing Link Ltd v Bristol City Council  EWHC 876 (TCC)