Firebuy Resists Heat Brought On By Procurement Injunction Challenge

28 Sep 2007

Firebuy, a non-departmental public body sponsored by the Department for Communities and Local Government, has successfully resisted an application for an interim injunction in a procurement claim by Lion Apparel.  The injunction, if granted, would have prevented Firebuy from entering into a contract for the supply of a new national uniform for firefighters.

The challenge related to a procurement competition commenced in 2003 called the “Integrated Clothing Project” or ICP.  Under the ICP, Fire and Rescue Authorities across England are to be given the opportunity to acquire the new national uniform, which includes protective equipment, through a centralised contract.

In March 2007, Bristol Uniforms was appointed preferred bidder for the ICP.   Following that appointment, Lion Apparel, one of the unsuccessful bidders, challenged the outcome of the process and commenced proceedings in the Chancery Division, applying for an interim injunction pending trial.  The claims made by Lion were wide ranging, but included allegations that Lion’s bid had been mis-scored in relation to price and garments; an allegation that Firebuy’s scoring system was irrational and unfair; and an allegation that Firebuy had discriminated against Lion in giving feedback to Bristol in a “bid development” phase.

Lion’s application was heard over 6 days by Morgan J.  The judge reviewed Lion’s various complaints in detail, and with one exception, found that Lion’s complaints were unfounded, out of time or would not have affected the outcome of the competition.  Morgan J held that the remaining claim, the challenge to Firebuy’s scoring methodology, was weak and speculative.  That complaint was not sufficient to interrupt the process given the possible adverse consequences of doing so.  Lion, if it succeeds at a trial, is limited to a claim in damages.

The judgment, which will be published in full in the week of 1st October 2007, contains interesting findings in relation to the standard of review the court will apply to decisions of contracting authorities, and the particular need for promptness where a claimant wishes to interrupt a procurement process which would otherwise move forward to the next stage.

Michael Bowsher QC and Rob Williams appeared for Firebuy, instructed by Pinsent Masons.

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Michael Bowsher QC
Rob Williams