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Draeger Safety UK v London Fire Commissioner: a helpful update on automatic suspensions and expedition in procurement challenges

  • United Kingdom
  • Litigation and dispute management
  • Public procurement

18-08-2021

Summary

The recent judgment of Mrs Justice O'Farrell in Draeger Safety UK Ltd v London Fire Commissioner (a copy of which can be found here) is a useful summary of the factors the Court will take into account when considering an application to lift an automatic suspension imposed by the Public Contracts Regulations 2015 (PCR). It is also noteworthy in terms of the interaction between applications to lift the automatic suspension and expedition of the underlying claim, even in the presence of strong public interest concerns.

Facts

The Claimant, Draeger Safety UK Limited (Draeger), was the incumbent provider of respiratory protective equipment to the Defendant, The London Fire Commissioner (LFC), under a contract awarded in 2010. LFC is the authority responsible for London’s fire and rescue service and ensuring that it is effective and efficient. LFC wanted to upgrade its existing equipment to improve the safety and effectiveness of its firefighters. It therefore published a contract notice in August 2020 in respect of a ten year contract for the supply of respiratory protective equipment with repair and maintenance services. Draeger submitted a tender but was informed that it had been unsuccessful and that LFC intended to award the contract to MSA Britain Limited (MSA).

On 23 April 2021, Draeger commenced proceedings against LFC alleging various breaches of the PCR. As LFC had not yet entered into the contract with MSA, Draeger’s claim triggered an automatic suspension under regulation 95(1) PCR, thereby preventing LFC from entering into a contract with MSA. Following this:

  • LFC issued an application to lift the automatic suspension and allow it to enter into the contract with MSA. Draeger opposed the application.
  • Draeger issued a separate application for an expedited trial to take place in October 2021. This application was supported by LFC, to the extent that the application to lift the automatic suspension was unsuccessful.

The Court’s Decision

The four issues to be considered by the Court when deciding whether to lift the automatic suspension are as follows:

  • Is there a serious issue to be tried?
  • If so, would damages be an adequate remedy for the claimant if the suspension were lifted and they succeeded at trial; is it just in all the circumstances that the claimant should be confined to its remedy in damages?
  • If not, would damages be an adequate remedy for the defendant if the suspension remained in place and it succeeded at trial?
  • Where there is a doubt as to the adequacy of damages for either party, which course of action is likely to carry the least risk of injustice if it transpires that it was wrong - in other words, where does the balance of convenience lie?

In this case, the Court accepted that damages may not be an adequate remedy for Draeger if the suspension was lifted and that decision ultimately turned out to be wrong. This was because the Court accepted that this procurement was being watched by other brigades and was likely to be perceived as setting the standard for improved protective equipment in this sector. As a result, the Court concluded that if the suspension was lifted and Draeger was no longer the incumbent service provider, it could suffer loss for which damages was not an adequate remedy. As such, the Court had to determine whether the balance of convenience lay in lifting or maintaining the suspension (i.e. which course carried the least risk of injustice if it proved to be wrong).

The Court considered the timely introduction of new and improved equipment for firefighters to be a very strong public interest factor in favour of lifting the suspension. However, the Court was able to offer the parties an expedited trial just three months after the hearing of the application to lift the automatic suspension. The Court concluded that the short delay to the award of the contract to MSA to allow an expedited trial to take place would not have any significant impact on the equipment improvements being made by LFC, particularly when viewed in the context of the overall schedule for roll-out of the new equipment. As such, the least risk of injustice lay with maintaining the suspension pending an expedited trial.

Comment: automatic suspension and expedition

This case is notable due to the fact that the suspension was maintained notwithstanding the obvious strong public interest in quickly securing the provision of new and improved firefighting equipment. The ability of the Court to accommodate an expedited trial in such a short space of time was a very significant factor supporting the court’s decision.

The recent Green Paper – Transforming Public Procurement – suggests that future reforms to the public procurement regime in the UK will be designed so that claims can be dealt with more quickly in order to ensure that matters can be dealt with before the relevant contract has been entered into. The Green Paper does recognise that even post-reform, procurements should be allowed to continue pending the outcome of a claim “where there are solid grounds” supporting such a decision. This case may provide an interesting insight as to how high the “solid grounds” hurdle might be set in the context of such reforms.

Pending the introduction of such reforms, claimants seeking to maintain an automatic suspension in a public procurement case should consider the possibility of an expedited trial at an early stage, including attempting to secure the agreement of the other parties and confirming availability with the Court.

In this particular case, the timetable set by the Court for the expedited trial (which provided for disclosure within six weeks of the order being made, exchange of witness statements one month later, and a five day trial within three months) demonstrates the Court’s expectations that parties to expedited trials move at a very considerable pace. As such, it will be important for claimants to ensure they have the resource, experience and expertise available to them to meet such expectations before applying for expedition.

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