The Halo Trust v Secretary of State for International Development

On an application to lift the statutory suspension of a public procurement contract, the court applied the American Cyanamid approach. The claimant had to show a serious issue to be tried and then establish that the balance of convenience favoured continuation of the injunction.

A procurement authority may use award criteria linked to the subject matter of the contract, including criteria concerned with development outcomes connected with mine clearance. The court will not use procurement proceedings to review an unchallenged governmental policy or strategy. Public interest, delay, effects on service users and the adequacy of damages are relevant to the balance of convenience.

The claimant challenged the defendant department’s decision to award a £3.5 million Cambodia mine-action contract to another framework contractor. It alleged breaches of the Public Contracts Regulations 2006, including lack of transparency, unequal treatment, unlawful criteria and weighting, manifest error, and procedural deficiencies.

The defendant applied under regulation 47G(1) to end the suspension preventing the contract award. The court considered whether there was a serious issue to be tried and, if so, where the balance of convenience lay.

1. Application granted. The statutory suspension preventing the defendant from entering into the Cambodia contract was lifted.
2. The applicable interim approach was that in American Cyanamid Co v Ethicon [1975] AC 396: first, whether there was a serious question to be tried; and secondly, whether the balance of convenience favoured the requested relief. The adequacy of damages was relevant.
3. The claimant’s challenge to the department’s mine-action strategy and its linkage between mine clearance and development did not raise a serious issue. The strategy had not been challenged by judicial review and could not be reviewed in these procurement proceedings.
4. The award criteria and weightings were sufficiently identified. Criteria relating to development benefits, beneficiaries, value for money and relevant experience were capable of being linked to the subject matter of the contract. The use of a subcontractor was not prohibited.
5. The clarification that funding could support activities supplemental and clearly linked to mine clearance was communicated equally to all tenderers. The increased budget was also notified to all tenderers, who were invited to revise their proposals. Neither matter disclosed a serious issue to be tried.
6. Even if a serious issue had existed, the balance of convenience favoured lifting the suspension. Relevant considerations included the public interest, the importance of avoiding delay to mine clearance, disruption caused by prolonged suspension, and the availability of damages as an adequate remedy.

First-instance decision. No prior appellate decision is stated in the judgment.