Aquila Heywood Ltd v Local Pensions Partnership Administration Ltd

Regulation 95 of the Public Contracts Regulations 2015 applies whenever its express conditions are met, including where the procurement falls within an exemption from the obligation to provide a standstill period. The automatic suspension prevents the contracting authority from entering into the contract pursuant to the challenged award decision. It does not prevent the authority from contracting pursuant to a later award decision that has not itself been challenged. Withdrawal of the original decision and re-evaluation of the tenders may make the challenge academic, subject to any accrued damages claim. A party’s conduct in refusing to acknowledge the authority’s contractual freedom may affect the costs order.

LPPA conducted a procurement for a core pension administration system. Aquila challenged the first decision to award the contract to Civica. LPPA subsequently withdrew that decision, rewound the procurement and re-evaluated the tenders. It then made a second award decision in favour of Civica, which Aquila did not challenge.

LPPA applied under regulation 96(1)(a) of the Public Contracts Regulations 2015 to bring any automatic suspension to an end. The parties agreed that the order could be made, but disputed costs. The central questions were whether regulation 95 applied despite the framework-agreement exemption from the standstill obligation and whether the suspension extended to the later, unchallenged award decision.

1. Regulation 95 applied. The automatic suspension arose once the conditions in regulation 95(1) were satisfied: a claim form challenging the contracting authority’s award decision had been issued, the authority knew of it, and the contract had not been entered into. Nothing in regulation 95 restricted its operation to procurements where a standstill period was mandatory. The framework-agreement exemption in regulation 86(5)(c) therefore did not prevent the suspension from arising. The authority’s election to provide standstill periods reinforced that conclusion.
2. Scope of the suspension. Construed in context and in light of the statutory purpose, regulation 95(1) prevented LPPA from entering into the contract pursuant to the challenged September award decision. It did not impose a general prohibition on contracting during the entire procurement exercise. Once that decision was withdrawn and the tenders were re-evaluated, the suspension served no further purpose.
3. The second decision was not challenged by a fresh claim form or amendment. LPPA was therefore not required to refrain from entering into a contract pursuant to that decision. The application under regulation 96(1)(a) was unnecessary. Withdrawal of the first decision made the challenge academic, subject to the possibility of an accrued damages claim, applying the qualification identified in Amey Highways Ltd v West Sussex Council [2019] EWHC 1291 (TCC).
4. The court adopted the purposive approach to statutory construction described in Pollen Estate Trustee Co Ltd v Revenue & Customs Commissioners [2013] EWCA Civ 753. Had the application been necessary, it would have been appropriate to deal with it urgently, consistently with the observations in Iridium Concesiones de Infraestructuras SA v Transport for London [2019] EWHC 3589 (TCC).
5. Aquila succeeded on the application, but its refusal to agree that LPPA was free to contract with Civica, followed by its inconsistent contention that the application was unnecessary, was relevant conduct under rule 44.2(4) of the Civil Procedure Rules 1998. Aquila was awarded half its costs.

First-instance decision. The judgment does not state any prior appellate history.