The case concerned the award of a contract for port agency services for the Royal Navy. In a previous judgment, handed down on 21 December 2017, the Court held that the Defendant (“the MoD”) had acted unlawfully in (1) applying a criteria that was arbitrary or not sufficiently clear from the Invitation to Tender (“the ITT”) and, (2) rejecting the claimant’s (“MLS”) tender. 

On 27 March 2018, MLS issued an application seeking the following relief:

i) A declaration that the procurement was carried out unlawfully;

ii) An order setting aside the decision to award the contract to the interested party (“SCA”); and

iii) An order requiring the MoD to award the contract to it.

The Court held that, by using a criterion to assess tenders which was not identified in the ITT, the MoD had acted unlawfully. Furthermore, it was clear that if the MoD had assessed the tenders based only on the published criteria in the ITT, it would have awarded the contract to MLS. As a result, the court held that the decision to award the contract to SCA should be set aside.

The Court also confirmed that it had jurisdiction to award the contract to MLS by ordering a mandatory injunction. However, it was noted that such an order would only be granted in exceptional circumstances.1 In this case, the court held that there were no exceptional circumstances present. In the ITT, the MoD reserved the right to (i) withdraw the ITT at any time, (ii) to re-invite tenders to submit their bid for the contract and (iii) to choose not to award the contract even after the winning bidder had been selected following completion of the procurement process. Essentially, the MoD had discretion to re-tender without the interference of the Court and there was nothing to justify the Court interfering with that right. 

Additionally, despite not ordering the MoD to do so, the court granted a declaration that it would be lawful for the MoD to award the contract to MLS without starting a fresh procurement exercise. The court considered the strong public interest of the MoD securing a contractual commitment without the delay and expense involved in a new procurement exercise; particularly considering that the contract was for a long duration and of high value. Furthermore, SCA, the original winning bidder, had not taken any steps or incurred any expense in performing its obligations under the contract. This meant that, if MoD awarded the contract to MLS instead of SCA, as a result, SCA would suffer little or no prejudice. 

This case demonstrates the consequences of unclear tender documentation.  Whilst obvious that if a tender was given a ‘fail’ score, it would result in a rejection, the court held that the ITT was not explicit.  The case also affirms the Court’s reluctance to grant mandatory injunctions when exceptional circumstances are not apparent and demonstrates the relief which could be sought in circumstances when a public body has not conducted its tender process in a lawful manner.   

• 1. This is for the four reasons set out by Lord Hoffmann in Co-Operative Insurance Society Ltd v Argyll Stores Holdings Ltd [1998] AC 1: the need for constant supervision, the expense of enforcement, the need for precision and the unjust enrichment of the claimant.