We have reported in previous blog posts (here, here, here and here) on cases involving the automatic suspension provisions introduced by the Public Contracts (Amendment) Regulations 2009, which implemented the new public procurement Remedies Directive. By way of reminder, under the new rules, a standstill period of at least 10 to 15 calendar days must be observed following an award decision. Where a challenge to a procurement procedure is launched during the standstill period, the contracting authority must refrain from entering into the contract until the challenge is determined. However, a court has the power to lift the automatic suspension upon application (the so-called “automatic suspension” provided for by Regulation 47G).
In Advanced Business Software and Solutions Ltd v The Pirbright Institute, the Pirbright Institute applied to lift the automatic suspension on the award of an IT contract, following a challenge by unsuccessful bidder, Advanced Business Software and Solutions Ltd. The High Court considered, and it was not disputed, that the American Cyanamid test for interim injunctions should be used to consider whether or not to lift the automatic suspension.
The High Court considered that the claimant had shown that there was a serious issue to be tried in relation to alleged breaches of the Public Contracts Regulations 2006. However, in lifting the automatic suspension, it considered that damages would adequately compensate the unsuccessful bidder. The High Court was also persuaded that Pirbright’s charitable status favoured the lifting of the suspension.
Advanced Business Software and Solutions Ltd v The Pirbright Institute  EWHC 4651 (TCC)