Neology UK Ltd v The Council of the City of Newcastle Upon Tyne & Ors

In a procurement challenge, summary judgment may be granted where the claimant has a cast-iron case on breach and no real prospect of avoiding an order setting aside the award. The claimant need not show that it would necessarily have won the contract, but must ordinarily show at least a significant chance of obtaining it.

Tender documents are construed objectively from the perspective of the reasonably well informed and normally diligent tenderer. Contracting authorities may assess tenders against the stated criteria and need not accept persuasive narrative concealed in appendices outside a prescribed word limit. Mere disagreement with scores does not establish manifest error or breach of equal treatment, transparency or proportionality.

In deciding whether to lift an automatic suspension, the court assesses adequacy of damages and the balance of convenience, including the public interest.

Neology, an unsuccessful bidder, challenged Newcastle’s decision to award a contract for an automatic number plate recognition system supporting the Tyneside Clean Air Zone. Newcastle, Gateshead and North Tyneside were defendants, although the procurement had been undertaken by Newcastle.

Neology sought summary judgment, alleging breaches of the procurement duties in the Public Contracts Regulations 2015. Newcastle applied to lift the automatic suspension preventing it from entering into the contract with Siemens. The central issues were whether the alleged defects were suitable for summary determination and whether damages were an adequate remedy for Neology.

1. Summary judgment. The application was dismissed. Neology did not have to establish that it would necessarily have won the contract. It was sufficient in principle to show no real prospect of avoiding an order setting aside the award decision, provided the claimant could show the necessary significant chance of obtaining the contract and a clear breach of duty (paras [72]-[73]).
2. Construction of the ITT. The invitation to tender was construed by reference to what a reasonably well informed and normally diligent tenderer would understand. The subjective views of the tenderers and contracting authority were irrelevant, although technical terms and relevant industry circumstances could be explained by evidence (paras [74]-[80]).
3. Word limits and appendices. The permission to attach documents had to be read with the word-limit provisions. A bidder could append illustrative documents or templates showing its working methods, but could not place persuasive narrative in an appendix to evade the word limit. Newcastle therefore had a reasonably strong case that the substantive content of the 68-page commissioning manual could not be treated as part of the answer to question 1 (paras [81]-[85]).
4. Evaluation. The criticisms of the answers to questions 2 to 4 were open to Newcastle. Describing the employment and skills answer as more akin to social-value material, observing that the management response was generic, and referring to unsupported financial assumptions did not amount to undisclosed criteria, unequal treatment or manifest error. The challenge was essentially disagreement with scoring and reasoning, with no obvious unfairness or disparity of treatment (paras [86]-[92]).
5. Automatic suspension. The stay was lifted under regulations 95 and 96 of the Public Contracts Regulations 2015. Damages were an adequate remedy for Neology despite difficulty quantifying loss. The contract and sums involved were modest and were not comparable with the exceptional procurements in Alstom Transport v Eurostar International Limited and Siemens plc, NATS (Services) Ltd v Gatwick Airport and Bombardier Transportation UK Ltd v London Underground Ltd. If necessary, the public interest in implementing the mandatory Clean Air Zone promptly would also have favoured lifting the stay (paras [128]-[140]).

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