Lifting automatic suspensions

Tick iStock 000013381987XSmall 146x219In what circumstances will the Court lift an automatic suspension on contract award? Edward Reynolds reports on a recent case.

In 2009, the Remedies Directive introduced a standstill period after each award decision together with automatic suspension of contract award if a challenge was issued in that period.

Under the Public Contract Regulations 2006 (the Regulations), automatic suspension of award takes effect when a claim is issued and the authority becomes aware of the claim. It remains in force until:

  • the Court brings it to an end by an interim order;
  • the proceedings are determined, discontinued or otherwise disposed of.

The case of John Sisk & Son Holdings Ltd v Western Health and Social Care Trust [2014] NIQB 56 involved a restricted tender for the award of a four-year framework agreement by the Western Health and Social Care Trust (the Trust) and the Department of Health, Social Services and Public Safety (the Department). It included a contract for the construction of an enhanced local hospital in Omagh, and had an estimated value of £50m to £100m. John Sisk & Son Holdings Ltd (Sisk) were unsuccessful, and ranked second with a score of 92.69 against the winning bidder's score of 92.70. There was therefore a real incentive to challenge as any uplift was likely to result in Sisk winning.

Sisk began proceedings, alleging the procurement breached the Regulations. This triggered automatic suspension, and the Trust and the Department applied to the Court to have it lifted.

When deciding whether to lift an automatic suspension, the Court must consider whether, if no suspension were applicable, it would be appropriate to make an order stopping the authority from entering into the contract. If the Court considers it would be inappropriate to make such an order, it may lift the suspension.The test considered by the Court has three distinct parts:

  1. Whether there is a serious question to be tried.
  2. If so, whether damages would be an adequate remedy.
  3. If not, where the balance of convenience lies.

In these circumstances, the Court decided that although there were serious issues to be tried, damages would be an adequate remedy for Sisk, and that it would not be too difficult or impossible to quantify those damages. Based on this, the Court concluded that the balance of convenience lay in favour of the public interest in the construction, in an appropriate timescale, of a new hospital. The award of the framework and contract was therefore permitted.

This case demonstrates that whilst the threat of an automatic suspension claim should always be a concern, given the time, cost and inconvenience it may lead to, it is still a difficult argument for a challenger to maintain. This is especially the case where there is a distinct public interest in allowing an authority to proceed with contract award.

Edward Reynolds is an Associate at Veale Wasbrough Vizards. He can be reached on 0117 314 5322 or This email address is being protected from spambots. You need JavaScript enabled to view it..