Apcoa Parking (UK) Ltd v City of Westminster

A procurement authority has a broad discretion to abandon a tender procedure, including where the procedure has been affected by mistakes or a fresh procedure is likely to produce a better result. An interim injunction cannot be granted merely because there is a serious issue about the procurement. The claimant must identify a viable remedy at trial and satisfy the American Cyanamid requirements. In procurement disputes, the court must also weigh the authority’s urgent operational needs and the interests of other bidders. Difficulty in quantifying loss does not by itself make damages inadequate.

The claimant sought an interim injunction preventing Westminster City Council from awarding contracts under a second procurement process for parking enforcement and street management services. The first process had been abandoned after the Council recognised that unpublished criteria had been used during the assessment. The claimant alleged that the abandonment and increased turnover requirements in the second process were unlawful and unfair, and sought ultimately to revive or amend the first process. Westminster relied on its contractual right to terminate, its procurement-law discretion to abandon the procedure, and the urgency of completing the replacement process. The central issues were whether there was a viable basis for relief at trial and whether interim relief was justified.

1. The application was refused. The claimant’s case depended on establishing that Westminster was not entitled to abandon the first procurement procedure or commence the second. That foundation was unsound.
2. Under the contractual documents, Westminster retained an express discretion not to award a contract. Regulation 32(11) of the Public Contracts Regulations 2006 also contemplated abandonment or recommencement. The European authorities recognised a broad discretion to terminate a procurement procedure, including where a mistake had occurred or a new procedure was likely to produce a better result. The court therefore found no legal basis to overturn or quash the abandonment decision.
3. Applying American Cyanamid v Ethicon Ltd [1975] AC 396, the claimant had no prospect of obtaining the pleaded final injunctive relief. There was consequently no need to preserve the status quo, and the application failed at the first hurdle.
4. Difficulty in quantifying damages did not establish that damages were inadequate. The claimed loss of a flagship contract and associated reputation did not identify a form of injunction capable of providing a better remedy.
5. The balance of convenience also favoured refusal. Westminster’s procurement needs had become urgent, its cross-undertaking would not adequately protect the authority, and the interests of other bidders had to be considered.