Boxxe Limited v The Secretary of State for Justice

In a procurement challenge, the court applies the American Cyanamid approach when deciding whether to lift an automatic suspension. It asks whether there is a serious issue to be tried, whether damages adequately protect the unsuccessful tenderer, whether they adequately protect the contracting authority, and, if necessary, where the balance of convenience lies.

A disputed limitation issue should not ordinarily be finally determined on an interlocutory suspension application where the law is not clear and fuller argument is required. Losses suffered by a subcontractor are irrelevant to the claimant’s own adequacy-of-damages assessment. Where damages clearly provide an adequate remedy for the claimant, the availability of an expedited trial does not displace that conclusion.

The Secretary of State for Justice applied under regulation 96 of the Public Contracts Regulations 2015 to lift the automatic suspension arising under regulation 95(1). The suspension followed a procurement challenge by Boxxe Limited, an unsuccessful tenderer, to the award of a call-off contract for digital and audiovisual equipment to Specialist Computer Centres Plc.

Boxxe advanced seven grounds, including alleged non-compliance, undisclosed evaluation criteria, unequal treatment, an abnormally low tender and errors in the pricing evaluation. The claim was issued on 12 January 2023, and the Secretary of State argued that it was out of time under regulation 92. The central issues were whether there was a serious issue to be tried and whether damages or the balance of convenience justified continuing the suspension.

Application granted. The automatic suspension was lifted, subject to an undertaking by the Secretary of State not to pursue the pleaded argument that any established breach was insufficiently serious to satisfy the Francovich conditions if the breach would otherwise have resulted in the contract being awarded to Boxxe.

1. Serious issue to be tried. The court applied the American Cyanamid approach, as summarised in Camelot Global Lottery Solutions Limited v Gambling Commission [2022] EWHC 1664 (TCC). The limitation question under regulation 92 of the Public Contracts Regulations 2015 concerned whether the day on which the economic operator knew or ought to have known of the grounds was included in the 30-day period. Despite substantial authority supporting an inclusive construction, including Zoan v Rouamba [2000] 1 WLR 1509, the issue was not sufficiently clear for final determination at this hearing. Fuller argument was appropriate in the forthcoming strike-out application.
2. Boxxe’s damages. Boxxe’s own losses were capable of assessment. Losses allegedly suffered by its subcontractor, Involve, were irrelevant to the adequacy of Boxxe’s remedy. A third party could have brought or joined a claim, and its decision not to do so could not make Boxxe’s damages inadequate. The possibility of counterfactual assessment and uncertainty about contract volumes did not alter that conclusion.
3. Francovich damages. The Secretary of State’s pleading that any breach was not sufficiently serious did not automatically make damages inadequate. The undertaking offered by the Secretary of State sensibly removed that issue for the purposes of the application.
4. Secretary of State’s damages and balance of convenience. Damages would not adequately compensate the Secretary of State for delay to the courts service, loss of first-year funding, possible price increases, or abandonment of the competition. Where damages were clearly adequate for Boxxe, the availability of an expedited trial was not a reason to continue the suspension. The public interest pointed in both directions, and the successful tenderer would also be adversely affected, but the least risk of injustice lay in lifting the suspension.