Advanced Business Software and Solutions Ltd v The Pirbright Institute

On an application to lift the automatic suspension in a public procurement challenge, the court applies the American Cyanamid approach. The claimant must show a serious issue to be tried; it need not establish that its claim is strong. Damages are ordinarily adequate where the alleged loss, including loss of profit or loss of a chance, can be quantified, even if recoverability remains disputed. The court must then assess the balance of convenience. In procurement cases, the practical consequences of maintaining the suspension may be weighed alongside the adequacy of damages. The public interest in enabling a publicly funded body to replace obsolete or inefficient systems may outweigh the claimant’s speculative commercial interests.

The claimant challenged the defendant’s procurement of an integrated information-technology system. The procurement had been restarted after an earlier tendering process, and the claimant challenged the result of the second process. The defendant applied to lift the suspension imposed by the Public Contracts Regulations 2006.

The court considered whether the challenge raised a serious issue to be tried, whether damages would be an adequate remedy, and where the balance of convenience lay. The first tendering process was not examined substantively for the purposes of the application.

1. Serious issue. The challenge to the second tendering process passed the threshold. The pleaded complaints alleged possible failures in the procurement process, including matters arising under Regulation 4.3 concerning transparency, non-discrimination, equal treatment, fairness, impartiality and proportionality. The court declined to assess at this interlocutory stage whether the claim was strong or weak.
2. Damages. The alleged losses, including lost margins, implementation costs, maintenance profits and loss of a chance of profit, were capable of being quantified. That did not determine whether they would ultimately be recoverable, but damages were therefore an adequate remedy in the relevant sense.
3. Balance of convenience. The court adopted the practical approach reflected in Covanta Energy Ltd v Merseyside Waste Disposal Authority [2013] EWHC 2922 (TCC) and observed in Group M (UK) Ltd v Cabinet Office [2014] EWHC 3659 (TCC). Adequacy of damages was treated as a strong factor in the overall balance. Maintaining the suspension could leave the defendant, a charity undertaking important scientific work, dependent on ageing and inefficient systems for a substantially extended period. The claimant’s asserted loss of future opportunities with research bodies was speculative and did not outweigh those consequences.
4. The suspension was lifted. The defendant’s application was allowed.