Bristol Missing Link Ltd v Bristol City Council

On an application to lift the automatic suspension in a public procurement challenge, the court applies the ordinary American Cyanamid approach. The threshold for a serious issue to be tried is low, particularly where the relevant evaluation documents have not been disclosed. A contracting authority should not withhold material disclosure and then rely on that material at the interlocutory hearing. The court must assess the adequacy of damages, the importance of the remedy of review, and the competing advantages and disadvantages of maintaining or lifting the suspension. The public interest in lawful procurement may outweigh a short delay, especially where lifting the suspension would effectively extinguish the claimant’s claim and the alleged prejudice to service users is unproved.

Bristol Missing Link Ltd, the incumbent provider of domestic violence and abuse support services, challenged Bristol City Council’s proposed award of a replacement contract to Refuge under the Public Contracts Regulations 2006.

The Council applied under regulation 47H to lift the automatic suspension imposed by regulation 47G(1). BMLL alleged unlawful downward moderation of its evaluation scores and errors in the individual scoring of its tender. The Council contended that the claim raised no serious issue to be tried and that the balance of convenience favoured allowing the new contract to proceed.

1. The application to lift the automatic suspension was refused. The suspension was to remain in force until after an expedited trial.
2. The applicable approach was the ordinary interim-injunction test under American Cyanamid Co v Ethicon Ltd (No 1). EU principles concerning fairness, transparency and the remedy of review remained relevant to the balance of convenience, but did not create a different legal test.
3. The serious-issue threshold is low. Where a procurement challenge raises arguable complaints about individual scores or moderation, and the relevant documents have not been disclosed, it will ordinarily be difficult to conclude that there is no serious issue to be tried. BMLL’s complaints about the moderation meeting and individual scores met that threshold.
4. The Council’s disclosure approach was potentially unfair. It should not withhold documents relating to the successful tender and then rely on new evidence about that tender to show that the claim was hopeless or that lifting the suspension would cause prejudice. Controversial material which the claimant cannot fairly answer should not ordinarily be deployed on a regulation 47H application.
5. The balance of convenience favoured maintaining the suspension. Damages were inadequate for BMLL because it was a non-profit organisation, had made no allowance for profit, and faced potentially catastrophic effects on its operations, services and reputation. Damages were adequate for the Council if the claim ultimately failed.
6. The importance of the remedy of review supported maintaining the suspension. An expedited trial could occur within a reasonably short period, producing only an approximately six-month delay. The Council had not demonstrated significant prejudice to service users, since BMLL’s existing services were broadly equivalent to, or better than, those required by the proposed contract.