Northern Isles Ferry Service procurement standstill lifted by Lord Malcolm
13 June 2012
In Shetland Line v Scottish Ministers & Serco Ltd  CSOH 99, Lord Malcolm required to consider the defenders' application to lift the automatic standstill brought about by the raising of proceedings under the Public Contract (Scotland) Regulations 2006. Lord Malcolm discusses the principles applicable to such cases, and emphasises (1) the margin of appreciation of a procuring authority in assessing bids made under the competitive dialogue; (2) the court's consequent reluctance, indeed inability, to adjudicate upon such issues; (3) the ability of a procuring authority to be flexible in what they state as being their requirements under the competitive dialogue; and (4) the importance of damages as a remedy in considering the lifting of the automatic standstill – both from the point of view of the disappointed tenderer, whose claim for damages is clear, and from the point of view of the successful tenderer who, in the event of his suffering loss as a result of the maintenance of the standstill, almost certainly has no claim whatsoever. Lord Malcolm indicated that here, as has proven the case in most procurement challenges, the preferable option was to lift the standstill, and to leave the pursuers to a remedy in damages.
The pursuers were represented by Jonathan Lake QC, and the Party Minuters (Serco Ltd as the successful tenderers) by Roddy Dunlop QC, both of Axiom Advocates.
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