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Chequered History of Ministry of Defence Procurement Exercise Revealed

Government contracts have to be put out to tender and such procurement exercises are a source of fierce competition and, not infrequently, litigation. One such case concerned the chequered history of attempts by the Ministry of Defence (MoD) to procure 6,000 product lines of hand tools essential for military needs.

HelicopterThere had been at least two past attempts by the MoD to procure the tools from the private sector, but the tendering processes had been challenged and subsequently abandoned. A bidder in the latest tendering exercise attacked the lawfulness of the tender documents. It argued that references to the manufacturers’ part numbers of various tools breached the Public Contracts Regulations 2015 and amounted to an unlawful obstacle to the opening up of the procurement to competition.

The date for completion of the tendering process and the award of the contract was fast approaching and the bidder sought an expedited trial of its claim. In refusing that application, however, the court noted that the bidder might ultimately be awarded the contract and had not sought an injunction to delay the process.

Given the level of detail involved, the suggested timetable for the hearing of the case was impossibly tight and an expedited hearing could only be arranged to the disadvantage of other court users. The court directed that the trial of the bidder’s claim be stayed until after the contract had been awarded.