Scottish Court of Session Decisions

 

OUTER HOUSE, COURT OF SESSION

[2014] CSOH 145

 

CA185/14

OPINION OF LORD DOHERTY

In the cause

STREET LIGHTING SUPPLIES & CO LTD

Pursuers;

against

 

(FIRST) SCOTLAND EXCEL;  and (SECOND) RENFREWSHIRE COUNCIL

Defenders:

Pursuer:  Cormack, Solicitor Advocate;  Pinsent Masons

Defender:  Lord Davidson of Glen Clova QC;  Simpson & Marwick

30 September 2014

Introduction

[1]        The pursuers are disappointed tenderers in relation to lots 4 and 5 of the framework agreement for street lighting materials which the defenders wish to conclude.  The agreement is a public supply contract to which the Public Contracts (Scotland) Regulations 2012 (“the Regulations”) apply.  In this action the pursuers aver that the defenders have breached the Regulations in several respects.  The effect of the action has been to prohibit the defenders from concluding the agreement (regulation 47(9)).  The action was raised in the Sheriff Court at Paisley.  On 8 September 2014 the sheriff remitted it to the Court of Session.  The matter which came before me on the Commercial Roll was a motion by the defenders for an interim order to bring that prohibition to an end (regulation 47(9)(b)).

[2]        The first defenders were formed by agreement between the local authorities in Scotland and are maintained through a joint committee under section 57 of the Local Government Scotland Act 1973. The second defenders are Renfrewshire Council.  In March 2014 the defenders advertised a procurement exercise on behalf of all 32 councils in Scotland in order to appoint suppliers to a framework agreement for the supply of street lighting materials. The exercise was under the open procedure (in terms of regulations 15 and 19).  The period of the framework agreement was to be 1 July 2014 to 30 June 2016 (with an option to extend it up to 30 June 2018).  Tenders were invited in respect of eight lots.  Lot 4 was for steel lighting columns and lot 5 was for aluminium lighting columns.  The pursuers submitted tenders for each lot.  On 23 June 2014 they were advised that they had been successful in relation to lots 1, 3, 6, 7, and 8 (in part).  For present purposes it is their lack of success in relation to lots 4 and 5 which is relevant.

[3]        The first three of the pursuers’ challenges relate only to lot 5. Its fourth to sixth challenges relate to both lots 4 and 5.

 

The Regulations
[4]        The Regulations provide:

“Part 1 GENERAL

 

…

 

4.— Economic operators

(1) In these Regulations, an ‘economic operator’ means a contractor, a supplier or a services provider.

(2) When these Regulations apply, a contracting authority must not treat a person who is not a national of a relevant State or is not established in a relevant State more favourably than one who is.

(3) A contracting authority must—

(a) treat economic operators equally and without discrimination; and

(b) act in a transparent and proportionate manner…

 

Part 2 TECHNICAL SPECIFICATIONS

 

9.— Technical specifications in the contract documents

(1) In this regulation—

 

…

 

‘technical specifications’ means—

(a) in the case of a public services contract or a public supply contract, a specification in a document defining the required characteristics of materials, goods or services, such as quality levels, environmental performance levels, design for all requirements (including accessibility for disabled persons) and conformity assessment, performance, use of a product, safety or dimensions, including requirements relevant to the product as regards the name under which the product is sold, terminology, symbols, testing and test methods, packaging, marking and labelling, user instructions, production processes and methods and conformity assessment procedures; …

 

…

 

(4) A contracting authority must ensure that technical specifications afford equal access to economic operators and do not have the effect of creating unjustified obstacles to the opening up of public procurement to competition.

 

…

 

Part 3 PROCEDURES LEADING TO THE AWARD OF A PUBLIC CONTRACT

 

…

 

19.— Framework agreements

(1) A contracting authority which intends to conclude a framework agreement must comply with this regulation.

(2) Where the contracting authority intends to conclude a framework agreement, it must—

(a) follow one of the procedures set out in regulation 15, 16, 17 or 18 up to (but not including) the beginning of the procedure for the award of any specific contract set out in this regulation; and

(b) select an economic operator to be party to a framework agreement by applying award criteria set in accordance with regulation 30.

(3) Where the contracting authority awards a specific contract based on a framework agreement, it must—

(a) comply with the procedures set out in this regulation; and

(b) apply those procedures only to the economic operators which are party to the framework agreement.

(4) When awarding a specific contract on the basis of a framework agreement neither the contracting authority nor the economic operator must include in that contract terms that are substantially amended from the terms laid down in that framework agreement.

 

…

 

(6) Where the contracting authority concludes a framework agreement with more than one economic operator, the minimum number of economic operators must be 3, insofar as there is a sufficient number of—

(a) economic operators to satisfy the selection criteria; or

(b) admissible tenders which meet the award criteria.

(7) Where the contracting authority concludes a framework agreement with more than one economic operator, a specific contract may be awarded—

(a) by application of the terms laid down in the framework agreement without re-opening competition; or

(b) where not all the terms of the proposed contract are laid down in the framework agreement, by re-opening competition between the economic operators which are parties to that framework agreement and which are capable of performing the proposed contract in accordance with paragraphs (8) and (9).

(8) Where the contracting authority is following the procedure set out in paragraph (7)(b), it must re-open the competition on the basis of the same or, if necessary, more precisely formulated terms, and where appropriate other terms referred to in the contract documents based on the framework agreement.

(9) Where the contracting authority is following the procedure set out in paragraph (7)(b), for each specific contract to be awarded it must—

(a) consult in writing the economic operators capable of performing the contract and invite them within a specified time limit to submit a tender in writing for each specific contract to be awarded;

(b) set a time limit for the receipt by it of the tenders which takes into account factors such as the complexity of the subject matter of the contract and the time needed to send in tenders;

(c) keep each tender confidential until the expiry of the time limit for the receipt by it of tenders;

(d) award each contract to the economic operator which has submitted the best tender on the basis of the award criteria specified in the contract documents based on the framework agreement; and

(e) by notice in writing as soon as reasonably practicable after the decision has been made, inform the economic operators that submitted tenders of its decision in relation to the award of the contract.

(10) The contracting authority must not conclude a framework agreement for a period which exceeds 4 years except in exceptional circumstances, in particular, circumstances relating to the subject of the framework agreement.

(11) In this regulation, a ‘specific contract’ means a contract based on the terms of a framework agreement.

(12) The contracting authority must not use a framework agreement improperly or in such a way as to prevent, restrict or distort competition.

 

…

 

Part 5 THE AWARD OF A PUBLIC CONTRACT

30.— Criteria for the award of a public contract

(1) Subject to regulation 18(28) and to paragraphs (6) and (9) of this regulation, a contracting authority must award a public contract on the basis of the offer which—

(a) is the most economically advantageous from the point of view of the contracting authority; or

(b) offers the lowest price.

(2) In order to determine that an offer is the most economically advantageous, a contracting authority must use criteria linked to the subject matter of the contract which may include quality, price, technical merit, aesthetic and functional characteristics, environmental characteristics, running costs, cost effectiveness, after sales service, technical assistance, delivery date and delivery period or period of completion.

(3) Where a contracting authority intends to award a public contract on the basis of the offer which is the most economically advantageous it must state the weighting which it gives to each of the criteria chosen in the contract notice or in the contract documents or, in the case of a competitive dialogue procedure, in the descriptive document.

(4) When stating the weightings referred to in paragraph (3), a contracting authority may give the weightings a range and specify a minimum and maximum weighting where it considers it appropriate in view of the subject matter of the contract.

(5) Where, in the opinion of the contracting authority, it is not possible to provide weightings for the criteria referred to in paragraph (3) on objective grounds, the contracting authority must indicate the criteria in descending order of importance in the contract notice or contract documents or, in the case of a competitive dialogue procedure, in the descriptive document.

 

…

 

32.— Information about contract award procedures and standstill period

(1) Subject to paragraphs (4) and (10), a contracting authority must by notice in writing as soon as possible after the decision has been made, inform all tenderers and all candidates concerned (if any) of its decision to—

(a) award the contract; or

(b) conclude the framework agreement.

(2) The notice referred to in paragraph (1) must include—

(a) the criteria for the award of the contract;

(b) where practicable, the score obtained by—

(i) the economic operator which is to receive the notice; and

(ii) the economic operator—

(aa) to be awarded the contract; or

(bb) to become a party to the framework agreement;

(c) the name of the economic operator—

(i) to be awarded the contract; or

(ii) to become a party to the framework agreement;

(d) in the case of an unsuccessful economic operator, a summary of the reasons why the economic operator was unsuccessful;

(e) in the case of an unsuccessful tenderer, the characteristics and relative advantages of the successful tender; and

(f) a precise statement of the effect of paragraph (3) on the economic operator which is to receive the notice.

 

…

 

Part 8 MISCELLANEOUS

43.— Confidentiality of information

(1) Subject to the provisions of these Regulations, a contracting authority must not disclose information forwarded to it by an economic operator which the economic operator has reasonably designated as confidential.

(2) In this regulation, confidential information includes technical or trade secrets and the confidential aspects of tenders.

 

…

 

Part 9 APPLICATIONS TO THE COURT

47.— Enforcement of obligations

 

…

 

(9) Except in the case of a contract or framework agreement to which regulation 6 applies, and without prejudice to the application of any relevant standstill period, where proceedings under this Part are served on a contracting authority or concessionaire in relation to a contract that has not been entered into or a framework agreement that has not been concluded, the contracting authority must not enter into the contract or conclude the framework agreement unless—

(a) the proceedings are determined, discontinued or disposed of; or

(b) the Court, by interim order, brings to an end the prohibition.

 

…

 

48.— Powers and duties of the court

…

 

(2) In any interim proceedings under this Part the Court may decide not to grant an interim order when the negative consequences of such an order are likely to outweigh the benefits, having regard to the following considerations—

(a) that decisions taken by a contracting authority must be reviewed effectively and, in particular, as rapidly as possible;

(b) the probable consequences of an interim order for all interests likely to be harmed; and

(c) the public interest.

…”

 

The test for an interim order
[5]        It was common ground that in determining whether to grant an interim order I should consider the factors referred to in regulation 48(2), the strength of the pursuers’ prima facie case, the balance of convenience, and whether damages would be an adequate remedy for the pursuers.  This is now well trodden ground (Elekta Ltd v The Common Services Agency 2011 SLT 815, Lord Glennie at paragraph 26;  Shetland Line (1984) Ltd v The Scottish Ministers [2012] CSOH 99, Lord Malcolm at paragraphs 11 and 12;  Clinical Solutions International Ltd v NHS 24 and Capgemini [2012] CSOH 10, Lord Hodge at paragraphs 12 and 13;  Amey AG Ltd v The Scottish Ministers [2012] CSOH 181, Lord Hodge  at paragraph 36;  Glasgow Rent Deposit & Support Scheme v Glasgow City Council and Ypeople Ltd [2012] CSOH 199, Lord Malcolm at paragraph 7;  Hastings & Co (Insolvency) Ltd v Accountant in Bankruptcy [2013] CSOH 55. Lord Hodge at paragraphs 53 and 54; Patersons of Greenoakhill Ltd v South Lanarkshire Council [2014] CSOH 21, Lord Tyre at paragraphs 10 and 11).

 

Strength of the pursuers’ case
[6]        I begin by considering whether it is possible to make an assessment of the strength of the pursuers’ case, under reference to the grounds of challenge as they were argued at the hearing before me.  I do not propose to summarise Lord Davidson’s response to each of the grounds, but at least some of his main themes are apparent from my discussion of Mr Cormack’s submissions.  I emphasise that my view is a preliminary one based upon the documents and other information presently before me.  The action is still at an early stage.  The pleadings are not fully developed and no doubt, if and when a full inquiry takes place, the court will be better placed to judge the merits of each of the pursuers ‘challenges.

 

Challenge 1
[7]        Mr Cormack submitted that the specification for lot 5 (5/3/9 of process as clarified by 5/3/11 of process) was for ultra heavy duty aluminium columns - designed to withstand a mean wind velocity of 29.5 metres per second at a maximum altitude of 250 metres.  Those factors exceeded what was required under the applicable guidance for columns erected in mainland Scotland.  Such columns were significantly more expensive than standard columns.  While the specification made clear that the defenders wanted a single “one column fits all” for the whole of the mainland, the reality was that few, if any, orders for such columns would in fact be made by Scottish mainland local authorities.  In this regard reliance was placed on a witness statement from the pursuers’ managing director, Roger Habberfield, and on the terms of PD 6547:2004+A1:2009  “Guidance on the use of BS EN 30-3-1 and BS EN 40-3-3”.  In specifying heavy duty columns the defenders had proceeded on the basis that Scottish local authorities will procure the majority of their requirements for aluminium columns in accordance with the lot 5 specification.  That was a manifest error.  Further, it was apparent that the defenders envisaged that under the framework agreement Scottish local authorities could, if they wished, procure non‑heavy duty aluminium columns (i) by awarding “call‑off” contracts directly having consulted appointed tenderers’ catalogues, or (ii) by conducting a mini‑tender exercise between the appointed tenderers.  Either of such processes would deny the pursuers the opportunity to tender for the provision of non‑heavy duty columns.  By assuming that the appointed tenderers for heavy duty columns would also be the most economically advantageous suppliers of non‑heavy duty/standard columns the defenders were in manifest error.  Given that the reality was that the vast majority of columns which would be procured by local authorities would be of the non‑heavy duty variety the defenders were in breach of regulation 30(1):  lot 5 of the Framework Contract had not been awarded to the appointed tenderers on the basis of the most economically advantageous tenders.  If the defenders permitted the framework agreement to be used as anticipated the specific call‑off contracts awarded by local authorities would have terms which were substantially amended from the terms laid down in the framework agreement.  The specific contracts would be awarded in contravention of regulations 19(4), 19(8), 19(12) and 4(3).  In relation to manifest error reference was made to Henry Brothers (Magherafelt) Limited v Department of Education for Northern Ireland [2008] NIQB 105, [2011] NICA 59.  In respect of material change from an awarded contract reference was made to Case C-454/06 Pressetext Nachrichtenagentur GmbH v Austria [2008] ECR I-4401.

[8]        I turn to the first suggested manifest error. I am not satisfied on the basis of the material placed before me that the defenders are labouring under any error.  Standing the terms of the specification, and the position adopted by the defenders at the hearing, it is clear that the local authorities want an aluminium column which is suitable for use anywhere in mainland Scotland.  The specification reflects that. It is, of course, for the contracting authority to decide what it wants.  Criteria selected will only be considered to be discriminatory if they cannot be objectively justified having regard to the characteristics of the contract and the needs of the contracting authority (Elekta Ltd v The Common Services Agency, supra, Lord Glennie at paragraphs 14 and 20).  The desire to have a single specification for aluminium columns intended to meet all mainland needs would seem to provide prima facie objective justification.  There is nothing inherently unreasonable or uncommercial about following such a course.  Having suppliers provide a greater quantity of a single product rather than lesser quantities of several products could be expected to result in economies of scale.

[9]        Nor, in my opinion, is it clearly erroneous for the defenders to assume that most of the aluminium columns which local authorities will in fact order will comply with this specification: if that were not so I would have expected the local authorities to have taken issue with its terms.  They have not done so.  Mr Habberfield is sceptical.  He points to his experience of local authority procurement;  to the fact that the tender specification exceeds what is necessary to comply with the relevant technical guidance; and to an indication given to him in discussion with the first defenders that if a local authority wished to obtain columns with a different specification it might be dealt with by using a call‑off contract.  It seems to me that none of this takes the pursuers very far.  First, practice can change:  the previous framework agreement did not make provision for a single column intended to be suitable for use anywhere on the mainland. Second, it is not extraordinary to use materials capable of withstanding stresses and conditions which are greater than those to which they are likely to be exposed.  Third, while in discussions the first defenders recognised the possibility that on occasions a local authority might wish to use a call-off contract to obtain a different specification, they did not suggest that they expected the majority of columns to be provided in that way - far from it.

[10]      What then of the alleged second manifest error?  Unless the pursuers are correct in relation to the first supposed error, the suggested second error is unlikely to be of any great significance.  Besides, the assumption challenged is not self-evidently illegitimate.  The regulations envisage that there is a degree of scope for call-off contracts being placed following competition between economic operators who are parties to the framework agreement, without the need for a new open competition (regulations 19(4), 19(7)(b)).  On the other hand, call‑off contracts with a value greater than the relevant threshold (reg. 8), and which exceed the scope of regulation 19(7)(b) (because they include terms which are “substantially amended from the terms laid down in the framework agreement” (reg. 19(4)), or because the contract is not “based on the terms of the framework agreement” (reg. 19(11)), would be public supply contracts to which the full gamut of the regulations apply.  In the event of non‑observance of applicable regulations such contracts would be open to challenge.

[11]      It follows in my judgement that challenge 1 is not a strong one. I consider the prospects of success to be less than reasonable.

 

Challenge 2
[12]      The second ground of challenge was that the technical specification for lot 5 breached regulation 9(4).  The pursuers avers (Condescendence 10):

“The performance specification requirements contained in the Material Specification for Aluminium Lighting Columns for Lot 5 of the framework agreement closely resembles (sic) the publicly available specifications supplied by a particular distributor …Reference is made in Section 5.03 … to ‘type 5’ reinforcement. This method of reinforcement is only one way of achieving the structural integrity requirements apparently required but is exclusive to one particular distributor. The defenders appointed 3 appointees to Lot 5 which supply the particular distributor’s product. As a consequence of the performance specification being drafted on the basis of that distributor’s product this offers a preference to that distributor over the products supplied and distributed by the pursuer…The specification required creates unjustified obstacles to the opening up of public procurement to competition in breach of Regulation 9(4)…”

 

Mr Cormack argued that the specification contained significant elements which closely resembled the standard product specification of a competitor, Aluminium Lighting Company (”ALC”).  In addition to the requirement  for “type 5 reinforcement” condescended upon, the specified dimensions of the base compartment opening (600mm x 115mm), and of the minimum cable entry (175mm x 75mm) were the same as in ALC’s standard specification for 6m, 8m and 10m columns.  The inclusion of these criteria was discriminatory.  No objective justification for them had been advanced by the defenders.  Reference was made to Elekta v Common Services Agency 2011 SLT 815 at paragraphs 14 and 19.

[13]      This ground appears to me to be even weaker than challenge 1.  The successful tenderers did not find the specification to be an obstacle to tendering: and it may be inferred from the pursuers’ averment that three of the appointed tenderers are suppliers of ALC’s product that the fourth appointed tenderer is not such a supplier.

[14]      It is noteworthy that of the two features of the specification said to closely resemble ALC’s standard specification, one relates not to specific mandatory dimensions but to minimum dimensions.  More importantly, this is not a case where the defenders have specified a specific brand or named product: see the discussion in Elekta at paragraph 19.  Rather, they have decided that the product they want should have certain specified characteristics.  That is a matter for them.  On the basis of the material before me, and in particular given the authorities’ preference for a single aluminium column for mainland use, it will be difficult for the pursuers to make good a case of lack of objective justification. 

 

Challenge 3
[15]      Four tenderers were appointed to lot 5.  The pursuers were the fifth ranked tenderer.  The pursuer complains that either (i) there was no predetermined methodology for selecting the number of suppliers to lot 5, or (ii) there was a predetermined methodology which was not properly and transparently set out in advance.  Mr Cormack submitted that in either case the defenders were in breach of regulations 4(3), 19(12) and 30(1).  He suggested that the reasonably well informed and diligent (“RWIND”) tenderer would not have anticipated that the number of tenderers appointed might vary from lot to lot.  He relied upon paragraphs 21 - 22 of Mr Habberfield’s witness statement.  Reference was made to C‑470/99 Unversale Bau and Others [2002] ECR I-11617 at paragraphs 91, 93 and 99;  Case C-532/06 Lianakis and Others [2008] ECR I-251 at paragraph 44; Case-331/04 ATI EAC [2005] ECR I‑10109 at 24, 26-32; Lettings International Ltd v Newham Borough Council [2008] EWHC 1583 at paragraph 52; Mears Ltd v Leeds City Council [2011] EWHC 1031 at paragraph 122;  Healthcare at Home v The Common Services Agency 2014 SLT 769, at paragraphs 26-28; and Lion Apparel Systems Limited v Firebuy Limited [2008] Eu LR 191 at paragraph 36.

[16]      This ground of challenge appears to me to be very weak.  The contention that the RWIND tenderer would not have anticipated that the number of tenderers appointed might vary from lot to lot is untenable.  All tenderers were made aware that it was anticipated that at least three suppliers would be appointed in respect of each lot but that the precise number appointed to a lot would depend on a number of factors, including the scope and quality of the tenders submitted.  In my opinion adequate explanation of the criteria to be used for determining the number of tenderers to be appointed to each lot was set out in the broadcast of 9 April 2014 (enclosure 1 in 5/2 of process).  Standing the nature of the relevant factors, and the range of possible scenarios, it will be an uphill task for the pursuers to show that more was necessary by way of elucidation.  It will be an even harder task for the pursuers to show that the provision of such further information would have made any difference to their approach to the tender or to the prospects of their tender being accepted.

 

Challenge 4
[17]      The pursuers scored relatively poorly in their responses to technical questions about service delivery.  The gist of their fourth complaint is that in so far as the defenders marked them down for the omission to go into detail about the staff who would be delivering the particular services, and their qualifications and experience, the defenders had been in error.  While factors such as those were relevant to bidder selection they were not relevant to award criteria.  The information had not been specifically requested in the technical questions about service delivery, and the RWIND tenderer would not have anticipated there was any need to provide it when answering the questions.  There was a strong prima facie case of breach of regulations 4(3), 19(12), and 30(1).

[18]      I disagree.  This challenge appears to me to be weak.

[19]      The scoring methodology for service delivery (5/3/7 of process) had been clearly set out and had emphasised that for an answer to score full marks on this part of the technical envelope it should be “a fully detailed response indicating excellent information/explanation/evidence answering the entire remit of the question”.  Mr Cormack - rightly - did not suggest that the defenders were not entitled to include the service delivery questions within the technical envelope.  The information sought was aimed at identifying the tender which was economically the most advantageous - service delivery was a legitimate aspect of that.  The information did not relate principally to an evaluation of the tenderer’s suitability and ability to perform the contract (cf. Lianakis, supra, paragraphs 30 and 31).  Rather, it concerned criteria linked to the subject matter of the contract within the ambit of regulation 30(2).

[20]      The bottom line is that the pursuers scored poorly in their responses to technical questions about service delivery because their answers were terse.  They did not address all the points raised.  They did not provide the sort of detailed information and evidence about service delivery that had been requested.  That was the defenders’ judgement of the pursuers’ responses.  Having read the questions and responses (p. 21 of 5/3/15 of process) I can readily appreciate why the defenders reached that conclusion.  The RWIND tenderer would have understood that much more was expected by way of response.  In the absence of full and detailed responses by the pursuers there was no objective justification for them obtaining a better score than they did for this aspect of the tender.  It was not simply an omission to provide detail as to the staff who would be involved with the service delivery, and their qualifications and experience: that matter was mentioned by way of illustration when Mr Habberfield asked for a specific example of a way in which an answer could have been improved.  All this is plain from pages 3 - 4 of the note of the feedback meeting of 4 July 2014

 

Challenges 5 and 6
[21]      Mr Cormack submitted that the defenders were in breach of their obligation under regulation 32 to provide an adequate summary of why the pursuers had been unsuccessful in lots 4 and 5 together with the characteristics and relative advantages of the successful tenders.  The reasons were insufficient.  The winning tenderers’ commercial scores and technical scores had not been provided.  There was also insufficient specification of why the pursuers received poorer technical scores.  Reference was made to Case T-57/09 Alfastar Benelux v Council of the EU at paragraphs 25 and 28.

[22]      Once again, I disagree.  In my opinion the decision letter of 23 June 2014 (5/1/1 of process) and the subsequent feedback (including feedback at a number of meetings) provided an adequate summary of the relevant matters.  This is an area where a degree of care required to be taken with information which is commercially sensitive.  I am not persuaded that in the circumstances it was incumbent upon the defenders to disclose more than they have done.  This ground of challenge appears to me to be a weak one.

 

Overall assessment, balance of convenience and public interest
[23]      Lord Davidson submitted that, at best, the pursuers had a weak prima facie case.  The balance of convenience and the public interest favoured the grant of an interim order.  The conclusion of the framework agreement would enable the thirty two councils (i) to save in total about £200,000 to £300,000 per month in capital purchase costs for energy efficient lighting (ii) to meet ongoing operational needs, and (iii) to maintain an effective street lighting service.  Cost savings would not be obtained if the existing framework agreement continued in force.  The longer the current position continued the greater the consequent loss of cost savings would be.  There was a risk of advantageous funding being lost, and/or of extra interest charges accruing because of delay in using funding earmarked for procurement.  On the other hand the pursuers’ damages if they succeeded would be likely to be relatively modest.  Their turnover under the existing framework agreement for the period from July 2011 had been about £417,000 (less than 10% of their total turnover).  The defenders estimated that the pursuers’ profit on that turnover would have been about £14,000 per annum.  There would be no particular difficulty in assessing damages on the basis of the loss of a chance.  The local authorities prepared quarterly reports where all relevant contracts would be recorded.  At present successful tenderers were being denied the opportunity to supply the councils.

[24]      Mr Cormack submitted that in relation to at least some of the challenges there was a strong prima facie case.  If he was wrong about that there were at least reasonable prospects of success in relation to all or some of them.  The balance of convenience and the public interest were in favour of refusing the order in so far as it related to lots 4 and 5 – it could be granted in relation to the other lots.  Damages for loss of the chance of having been appointed would be difficult to assess and would not be likely to be an adequate remedy.  The pursuers’ past turnover under the existing contract would not be a reliable guide when assessing damages because that appointment had been to supply hinged aluminium columns.  The challenges in the case were capable of being determined very quickly.  Local authorities would not be deprived of vital equipment because the previous framework agreement could be continued meantime.  If the interim order was made then on each occasion there was a call-off contract for non‑heavy duty columns there would be a breach of regulations 19(4), (8) and (12).  That would not be in the public interest.

[25]      I have already indicated that I assess the pursuers’ prospects of success to be less than reasonable in relation to challenge 1 and to be even weaker in relation to the remaining challenges.  There is no prima facie case (or at best a very weak one) in relation to the challenges affecting lot 4.  As regards lot 5, there is a weak prima facie case in relation to challenge 1 and poorer prospects for the other challenges.  A proof before answer may well be necessary to resolve the merits of the dispute.  Even taking account of the priority given to commercial causes, and bearing in mind the possibility of a reclaiming motion, a significant period is likely to elapse before the dispute is finally resolved.  Once account is taken of these factors and of the other reasons put forward by Lord Davidson, the balance of convenience and the public interest clearly favour the grant of the order.

[26]      Finally, I have considered the possibility of making an order which ends the prohibition except for lot 5.  However, I am satisfied having regard to the relative weakness of the pursuers’ case, and balancing the prejudice to councils, the public and successful tenderers of a continued prohibition against the prejudice to the pursuers of the prohibition being removed, that the balance of convenience and the public interest still clearly favour the grant of the order.

[27]      In all the circumstances I shall pronounce the interim order sought.