Robert Heath Heating Limited v Orbit Group Limited

On an application to lift the automatic suspension in a regulated procurement, the court applies the American Cyanamid principles. The claimant must show a serious issue to be tried, but need only establish that the claim is not frivolous or vexatious. If damages would adequately compensate the claimant, and no exceptional circumstances exist, the suspension will normally be lifted. Difficulty in valuing a lost chance does not, by itself, make damages inadequate. Early specific disclosure may be ordered where the claimant establishes a prima facie case and seeks focused documents showing how the evaluation was actually performed. The court must balance the claimant’s need for information against the risk of a fishing exercise.

Robert Heath Heating Limited challenged Orbit Group Limited’s award of domestic heating-services contracts to Aaron Services Limited. The challenge alleged a conflict of interest arising from a former Orbit employee’s later employment within the successful bidder’s group, manifest errors and lack of transparency in scoring, and unequal treatment.

Orbit applied to lift the automatic suspension arising under the Public Contracts Regulations 2015. Robert Heath applied for early specific disclosure concerning the evaluation process and the alleged conflict. The central issues were whether there was a serious issue to be tried, whether damages were an adequate remedy, where the balance of convenience lay, and whether focused early disclosure was justified.

1. Automatic suspension. The application to lift the suspension succeeded. The court applied the American Cyanamid approach through the procurement authorities. The relevant questions were whether there was a serious issue to be tried; whether damages would be adequate for the claimant if the suspension were lifted; whether damages would be adequate for the defendant if it remained; and, if necessary, where the balance of convenience lay.

2. The serious-issue threshold was low. The question was whether the claim was frivolous or vexatious. The conflict challenge passed that threshold because the evidence raised questions about the former employee’s role and the information available to her. The scoring challenge also passed it, particularly because issues arising from individual scores are difficult to resolve before relevant documents have been disclosed. The court did not decide the ultimate strength of either claim.

3. Damages were an adequate remedy. The claimant was a substantial commercial organisation within a substantial group. The contracts, although valuable, would not have dominated its turnover. Their commercial significance and the possible difficulty of assessing a lost chance were matters for valuation, but did not make damages inadequate. The alleged reputational loss was not established to the necessary standard.

4. There were no exceptional circumstances justifying continuation of the suspension. Orbit’s application therefore succeeded.

5. Early specific disclosure. The claimant had established a prima facie case. Focused documents relating to its own tender, including evaluators’ notes, moderation material and relevant training or guidance documents, were relevant to the scoring challenge and would fall within standard disclosure. Early production was proportionate because it would allow the claimant to assess whether its claim was properly pleaded and whether it should continue. Disclosure concerning conflicts was limited to material arising from the former employee’s role. The disclosure application succeeded in that restricted form.

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