Court refuses to lift the prohibition on contract award
9 May 2016
Public Procurement: Court Refuses to Lift the Prohibition on the Contract Award
The case of Scott & Co (Scotland) LLP v Aberdeenshire Council  CSOH 64 arises from a dispute in relation to the procurement of Sheriff Officer and debt recovery services by Aberdeenshire Council.
The pursuer maintains that the procurement exercise was not conducted in compliance with the fundamental requirements set out in the Public Contracts (Scotland) Regulations 2012. In particular, the pursuer asserts that the Council applied undisclosed criteria when assessing tenders and manifestly erred in the assessment of aspects of its tender.
The raising of proceedings placed an automatic prohibition on the award of the contract. The Council enrolled a motion seeking to lift the prohibition on the award of the contract. The Council argued that the pursuer had no prima facie case and that the balance of convenience favoured the award of the contract, leaving the pursuer with a claim in damages.
Lord Dohety refused the pursuers motion and has fixed a proof before answer for 11 and 12 May.
It is believed that this is the first case in Scotland where a procuring authority has failed in an application to lift the prohibition on the contract award. The case is therefore likely to have significant implications for future cases where the procuring authority seeks to lift the prohibition on the contract award.
Axiom members Kenny McBrearty QC and John MacGregor, advocate, acted for the pursuer in successfully resisting the motion to recall the prohibition on the contract award.
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