Public Procurement, Interim Injunctions And Framework Agreements

In the following case, the court had to consider whether the grant of an interim injunction should be upheld to prevent a contracting authority proceeding with the award of a framework agreement.

European Dynamics SA v HM Treasury [2009] EWHC 3419 (TCC)

The contracting authority commenced a procurement exercise inviting tenders for the establishment of framework agreements for the delivery of software application solutions for use by UK public sector bodies. There were six agreements to be let (Lots 1 - 6). The tenderer (a company based in Greece which specialised in software products) was unsuccessful on its tenders for Lots 1, 3 and 6.

The unsuccessful tenderer complained to the contracting authority that its tender had not been marked fairly, that it had not been given sufficient details of the characteristics and relative advantages of the successful tenderers and required more information as to how the tenders had been marked. Despite the contracting authority's responses the claimant tenderer continued to seek more information from the contracting authority.

As the contracting authority was due to sign contracts with the successful tenderers the unsuccessful tenderer sought a without notice injunction to prevent the contracting authority awarding the framework agreements.

The injunction was granted on the basis of the Cyanamid principles without notice to the contracting authority but on the return date hearing between the parties (one week later) the court had to consider whether to continue to uphold the interim injunction or to discharge it.

The Statutory Framework

We reported on the public procurement regulations (Regulations) in our December 2008 Updater in the case of Letting International Limited v London Borough of Newham [2008] EWHC 1583 (QB).

The Regulations relevant to this case provide that:

the contracting authority is under a duty to be transparent in its tendering process and provide a "level playing field" i.e. it must treat all tenderers equally; the tenderer must bring proceedings for breach of the Regulations promptly and in any event within three months from the time when grounds first arose unless there is a good reason to extend the period; and the Court has the power to: - suspend the award of the contract in question; - set aside a decision of the contracting authority; and/or - award damages when appropriate,

the Court also has the power to grant an injunction. The law and practice of interim injunctions

The award of an interim injunction is...