European Dynamics’ without notice injunction is discharged by the courts.
European Dynamics (‘ED’) had pre-qualified to tender to provide to OGC certainconsultancy services in respect of IT applications and software products but was unsuccessful in its application. ED complained to OGC that it had been subject to unequal treatment, and sought further detail on how it had been scored.
ED had successfully obtained a without notice injunction to prevent OGC from entering into the agreements. However, following a hearing and consideration of further evidence, the court told the parties that the injunction would be discharged. The judgment was handed down on 23 December 2009.
The court concluded that the 2006 Regulations did apply then considered whether an interim injunction should be granted. An interim injunction is permissible when the applicant establishes that:
- there is a serious issue to be tried; and
- the balance of convenience favours the grant of the injunction in question.
ii. Serious issues to be tried
ED alleged inadequacies in the tender documents, stated that the ITT wrongly included in it pre-qualification or selection criteria that would be applied and considered at the award stage. However, the court concluded that this did not raise a serious issue to be tried. The court pointed to the fact that ED had received the ITT about four months before it applied for an injunction and had therefore not acted promptly enough.
ED also alleged it was treated unfairly by the way its bid was marked and criticised the scoring system. It claimed that the scoring system lacked transparency and also that it was applied in a way that treated tenderers unequally. The court did not disagree with this but noted there may be innocent explanations for the scoring and as such was unable to resolve this on the basis of the evidence available and the lack of a detailed response from the defendant.
ii. Balance of convenience
The court also noted that there is a general public interest (in terms of cost savings) in a central and common public procurement route for services, (eg under framework agreements). A delay of six months or more could cause further damage.
The court found that if ED were successful on liability, damages would adequately compensate it for its loss. The court also noted the risk that if an injunction were granted the tender process would have to be repeated. ED had acquired knowledge already and so it may be necessary to exclude it as well as other original tenderers from the new procurement so as to ensure equality of treatment. This effect would be contrary to public interest if the second tendering round was required to exclude the best tenderers.
