AMEY OW LTD AGAINST NORTH LANARKSHIRE COUNCIL [2024] ScotCS CSOH_66 (28 June 2024)

AMEY OW LTD AGAINST NORTH LANARKSHIRE COUNCIL [2024] ScotCS CSOH_66 (28 June 2024)

The court found that, although the pursuer established a prima facie case on certain grounds, damages would be an adequate remedy and the balance of convenience, including public interest and operational harm to the defender, strongly favoured lifting the automatic suspension imposed by regulation 89. The defender's use of the Should Cost Model did not constitute an undisclosed award criterion, and the procurement process was not shown to be manifestly unlawful at this stage.

Citation
[2024] ScotCS CSOH_66
Parties
Pursuer: Amey OW Limited; Defender: North Lanarkshire Council
Jurisdiction
Scotland
Judgment Date
28 June 2024
Procedural Posture
Commercial Action / Interim Motion to Lift Automatic Suspension Under Regulation 89 of the Public Contracts (scotland) Regulations 2015
Outcome
Interim order granted; automatic suspension lifted.
Legal Topics
Automatic Suspension, Interim Relief, Adequacy of Damages, Transparency in Procurement, Award Criteria Disclosure, Balance of Convenience
Public Procurement Administrative Law Contract Law Automatic Suspension Interim Relief Adequacy of Damages Transparency in Procurement Award Criteria Disclosure +1 more

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Parties

Amey OW Limited

Pursuer

North Lanarkshire Council

Defender

Procedural Posture

Commercial Action / Interim Motion to Lift Automatic Suspension Under Regulation 89 of the Public Contracts (scotland) Regulations 2015

Legal Issues

  1. 1 Whether the defender breached procurement regulations by awarding the contract to Hochtief PPP Solutions GmbH
  2. 2 Whether the use of a Should Cost Model constituted an undisclosed award criterion
  3. 3 Whether Hochtief's tender was abnormally low or non-compliant

Ratio Decidendi

The court found that, although the pursuer established a prima facie case on certain grounds, damages would be an adequate remedy and the balance of convenience, including public interest and operational harm to the defender, strongly favoured lifting the automatic suspension imposed by regulation 89. The defender's use of the Should Cost Model did not constitute an undisclosed award criterion, and the procurement process was not shown to be manifestly unlawful at this stage.

Court Disposition

Interim order granted; automatic suspension lifted.

Orders

  • North Lanarkshire Council permitted to enter into the contract with Hochtief PPP Solutions GmbH pending determination of proceedings.
  • Pursuer's motion for commission and diligence granted.