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DAC Beachcroft successful in important Clean Air Zone procurement challenge

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By Tim Dennis, David Mahon and Scott Speirs


Published 24 November 2020


Neology UK Ltd v The Council of the City of Newcastle Upon Tyne & Ors [2020] EWHC 2958 (TCC)

Tim Dennis (Legal Director), Hannah Chapelhow (Senior Associate), David Mahon (Associate) and Scott Speirs (Solicitor) of DAC Beachcroft LLP successfully acted for Newcastle City Council ("NCC") in the above case.

This involved a challenge brought by an unsuccessful bidder, Neology UK Limited (“Neology”), in relation to the outcome of a procurement for the provision of ANPR cameras required as part of a significant project to establish one of the UK’s first Clean Air Zones (“CAZ”) in the Newcastle and Tyneside local authority areas.

The CAZ programme is the UK Government’s chosen method of achieving significant reductions in levels of nitrogen dioxide in the outdoor air of major UK cities, in order to comply with obligations under EU law (Directive 2008/50/EU (the Air Quality Directive)).

In a detailed written judgment handed down earlier this month, NCC was successful in (a) resisting Neology’s application for summary judgment, and (b) lifting the automatic suspension on contract-making.

Neology contended that there were various errors and flaws in the evaluation of tender responses. It sought summary judgment and also attempted to maintain the automatic suspension, thereby preventing the award of the contract, contending that winning the contract was critical to its UK business strategy and that not being awarded the contract would cause it to withdraw from the UK market.

In the judgment, the High Court dismissed Neology’s application for summary judgment and granted NCC’s application to lift the automatic suspension. The Judge found that: (a) Neology’s claim came "nowhere near" to meeting the summary judgment standard; (b) Neology’s evidence suggesting that not being awarded the contract would cause it to withdraw from the UK market was unconvincing; and (c) even if the Court had not found damages to be an adequate remedy for Neology, it would have held that the weighty public interest in improving air quality for the people of Tyneside required that the suspension should be lifted.

This case will be of interest to local authorities which are to implement a CAZ (and indeed bidders in any related procurements) but also to those involved in procurement generally as the judgment provides a reminder of the principles applied by the Court when considering: (a) whether damages are an adequate remedy; and (b) the balance of convenience in the context of an application by a Contracting Authority to lift an automatic suspension.  

The judgment can be found here.