IT company fails to get injunction stopping Buying Solutions procurement exercise

An IT company has failed in a High Court bid to stop the Treasury’s Buying Solutions arm from continuing with a procurement exercise.

In B2Net Ltd v HM Treasury (sued as Buying Solutions) [2010] EWHC 51 (QB), the claimant alleged that Buying Solutions was in breach of the Public Contracts Regulations 2006, EU directive 2004/18/EC and general EC principles of non-discrimination and transparency in its conduct of the exercise, which related to the award of framework agreements for the provision of IT goods and services to government.

B2Net was not shortlisted for the invitation to tender stage, despite having scored the maximum available marks in almost all categories in the pre-qualification questionnaire.  The basis of the company’s claim for an interim order was the low marks awarded to it in relation the breadth of its experience, which meant it just missed out on selection.

But Mr Justice Tugendhat refused to issue an injunction. “The evidence suggests that damages would be an adequate remedy, and more readily capable of calculation than many claims for damages for loss of business that come before the courts,” he said.

The judge also took the view that if he granted an injunction, and B2Net did not establish its case at trial, the disruption to public sector buyers using the framework and to other bidders “must inevitably be damaging”.

He added: “The remedy under a cross-undertaking, however framed, does not appear to me to be one that would be adequate to prevent injustice.”