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London borough secures lifting of suspension on award of CCTV contract

A London borough has successfully applied to the High Court to have lifted an automatic suspension under procurement regulations of the award of a contract for a road traffic CCTV system.

The case of OpenView Security Solutions Ltd v The London Borough of Merton Council [2015] EWHC 2694 (TCC) related to a procurement competition run by Merton for the provision of an integrated CCTV and automatic number plate recognition systems in the borough, together with ongoing maintenance.

Merton’s existing system for policing and enforcing road traffic infringements – such as driving in bus lanes, stopping in junction boxes and so on – is out of date, unreliable and unable to capture as many infringements as a new system would.

The OJEU notice set out the contract value for the capital installation as between £1-2m with between £50,000-£150,000 per annum for three years for maintenance.

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At the end of the procurement process the council announced its intention to enter a contract with Tyco.

Rival bidder OpenView, which came second in the assessment of tenders, subsequently issued proceedings on 21 July 2015, triggering an automatic suspension of the award of the contract.

The claimant argues that Tyco's tender was fundamentally non-compliant and should have been rejected from consideration. It also claims that: Merton took into account unidentified criteria when assessing the bids; there was an absence of equal treatment; and there were manifest errors in the scoring.

The following month Merton applied to the High Court under Regulation 47H of the Public Contracts Regulations 2006 (as amended) to set aside the automatic suspension. This application was heard on 18 September 2015.

Mr Justice Stuart-Smith concluded that OpenView had not shown that damages would be an inadequate remedy.

“In those circumstances the starting point for the application of American Cyanamid principles is that no interlocutory injunction should normally be granted, even though I am equally satisfied that damages would be an adequate remedy for Merton if OpenView ultimately fails in its challenge,” the judge said.

He added: “I accept that this starting point is not necessarily determinative, but no other factor has been identified by OpenView that would justify departing from the normal outcome. If and to the extent that the public benefit is to be brought into account as a separate factor to be applied in a separate and discrete balancing of convenience, I do not consider that the matters that have been identified by the parties tilt the balance one way or the other.

“Accordingly, whether American Cyanamid principles are applied in the conventional way or as discussed in the authorities to which I have referred, the answer is the same. If I adopt the formulation endorsed by both sides in the present case, namely ‘Is it just, in all the circumstances, that OpenView should be confined to its remedy in damages?’, my answer is that it is.”

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