Merseyside Waste Disposal Authority (“MWDA”) conducted a procurement exercise for a £1.2 billion contract for the construction and operation of a new energy and waste facility. Covanta was an unsuccessful bidder and commenced proceedings against MWDA claiming manifest procedural errors. Covanta claimed that the contract award should be suspended under Regulation 47G of the Public Contracts (Amendment) Regulation 2009. Covanta also applied for an injunction to prevent the award of the contract.
The High Court found that the automatic suspension regime introduced by the Public Contracts (Amendment) Regulations 2009 was not applicable as the procurement procedure was launched prior to 20 December 2009.
The court therefore considered whether it should award an interim injunction preventing MWDA from entering into the contract until the trial of the issues in the proceedings. In granting the injunction the court applied the test set out in American Cyanamid v Ethicon considering: (1) if there was a serious issue to be tried; (2) if damages were an adequate remedy; and (3) where the balance of convenience lay. The judgment provides a careful analysis of the adequacy of damages as a remedy as well as the factors the court should weigh in the balance of convenience as favouring the maintenance of interim relief pending trial in procurement litigation.
Covanta Energy Ltd v Merseyside Waste Disposal Authority  EWCH 2922 (TCC)