Ashfords Solicitors - Lion Apparel Systems Limited v Firebuy Limited 27/09/2007

This case highlighted that when reviewing decisions taken in a procurement process, in relation to matters of judgment or assessment, the court will only disturb the Authority's decision where it has committed a manifest error; the judgment demonstrates the court's reluctance to make such a finding. Furthermore, when applying the balance of convenience test emphasis is placed on the fact that failure of the lengthy and expensive procurement process can cause harm including harm to the wider public interest; consequently a strong case is needed to show that an order should be made which might cause such a project to fail.

Firebuy Limited (Firebuy) was responsible for a procurement process for the supply of firefighters' uniform and personal protective equipment; it awarded the contract to Bristol Uniforms Limited (Bristol) and ranked Lion Apparel Systems Limited (Lion) third in the list of preference. Lion applied for an interim order preventing Firebuy from entering into a contract with Bristol.

The court noted that when it reviews a decision, or step taken, in a procurement process, it must ensure that the principles of public procurement (that Authorities treat bidders equally and in a non-discriminatory way and act in a transparent way and that the criteria used by the Authority to select a contractor must be transparent, objective and related to the proposed contract) have been complied with and that the facts relied upon by the Authority are correct and that there is no manifest error of assessment or misuse of power.

Lion challenged a number of aspects of the procurement process including:

Bristol's criminal convictions: Lion argued that Bristol's failure to disclose three convictions meant it should not be treated as an eligible bidder as the pre-qualification questionnaire stated that the provision of false information

would invalidate the application and may disqualify an organisation from consideration. The court held that the procuring authority had discretion as to how to deal with this and accordingly the court could only intervene if the exercise of discretion was manifestly wrong, which it was not in these circumstances.

Scoring Methodology: Lion argued that features of the scoring were not fair and bidders were treated unequally. The Judge highlighted that the fact that one scoring system favours one bidder does not make it manifestly wrong and noted that the weightings to be applied were declared in advance. The personnel selecting the scoring method were experienced resulting in the Judge being loathe to reach a conclusion that it was manifestly wrong. Consequently the Judge was of the opinion that Lion had demonstrated a weak ground of challenge.

Assessment of certain parts of the bid: Lion challenged Firebuy's assessment of certain parts of the bid; however, the court concluded that Lion failed to show causation of damage or risk of damage. Even if the grounds of challenge could be established it would not have produced a different outcome as the improvement in Lion's scoring would not have eliminated the lead which Bristol had.

General favouritism and feedback at the Bid Development Day (BDD): Lion complained that Firebuy favoured Bristol throughout the process; in particular by not allowing Lion to change its bid in relation to the garments offered and by encouraging Bristol to improve its price after the BDD. The court held that each bidder received feedback and they were

not allowed to change their bids in relation to the garments; consequently there was no breach of the principle of equality of treatment in relation to the BDD feedback. Throughout the process Firebuy had not failed in its duty to act equally and without discrimination or misused its powers.

The court, by reference to the balance of convenience test, held that Lion had only shown a weak case in relation to one of their claims and that this should not be regarded as sufficient to interrupt the procurement process where such an interruption might cause the project to fail. Accordingly the interim order was declined.

On 20 February 2008 Firebuy was successful in its application for summary judgment in relation to some of Lion's claims (including Bristol's non-disclosure of criminal convictions and certain allegations of mis-scoring); the remaining issues will proceed to trial.

27th October 2007

Lion Apparel Systems Limited v Firebuy Limited 27/09/2007

Introduction