Automatic suspensions

If an unsuccessful bidder begins court proceedings before a contract is signed, it will automatically prevent the contracting authority from signing the contract with the winning organisation. This is an important stage for unsuccessful bidders, but equally needs to be managed with care.

A key tactical decision in the early part of any procurement claim is whether the contracting authority will apply to Court to lift the automatic suspension. This leaves the challenging bidder only with a claim in damages.

Bevan Brittan has advised us on public procurement legislation for the last seven years. During this time we have experienced the very best advocacy when we have had to seek advice or protect our position as a bidder for NHS contracts. Emily and the team have always represented us professionally, with exquisite knowledge and importantly passion for our position. The guidance we have received has always been wise, effective and has allowed us to on occasion hold public bodies accountable whilst retaining a commercial relationship ensuring that we are not disadvantaged to compete for future business. I have no reticence recommending Bevan Brittan.

Leading pathology provider

Our team have extensive experience of representing both contracting authorities in applications to lift the suspension, and bidders in defending such applications. We work closely with our clients to ensure that the evidence to support your position is as relevant and detailed as possible, and will provide support in the lead up to, and during, the court hearing.
Whether you are a contracting authority or a supplier, and whichever type of procurement you are involved with, we can:
- advise on the benefits and disadvantages of applying to the Court to lift the automatic suspension (or agreeing to an application to lift). This will take into account such factors as the cross-undertaking in damages that may be required to be provided by the Claimant, and the risk of having to pay twice for the contract (in damages and in the contract price) if the application and the claim are successful
- correspond with the other side on your behalf, and instruct Counsel to appear on your behalf
- help you with all preparation for, and conduct of, a hearing to determine an application to lift the suspension, including taking evidence and drafting witness statements.
We have acted in the following applications to lift the automatic suspension:

Maintaining the automatic suspension

Our client was an incumbent provider of domestic violence support services for Bristol City Council. They successfully defeated an application by the Council to lift the suspension at a hearing. This enabled the suspension to remain in place and the contract eventually to be awarded to our client. Bristol Missing Link v Bristol City Council [2015] EWHC 876

Representation at an application to lift

We acted for an NHS Trust in resisting an application to lift the automatic suspension issued by the defendant CCGs. Kent Community Health NHS Foundation Trust v NHS Swale and NHS Dartford, Gravesham & Swanley Clinical Commissioning Groups [2016] EWHC 1393

Representation at an application to lift

We acted for the claimant bidder in an application to lift the automatic suspension. This raised novel issues as to the ability of the Court to order the lifting of the suspension, in relation to part of the contract only. Sysmex (UK) Limited v Imperial College Healthcare NHS Trust [2017] EWHC 1824