Successful action for breach of procurement rules. Aquatron Marine v Strathclyde Fire Board

19 December 2007

For the first time in Scotland, a pursuer has been awarded damages for breach of the procurement rules by a public authority. Aquatron Marine brought a claim against Strathclyde Fire Brigade on the basis that the award of a contract by them had not been in accordance with Regulations. Aquatron claimed that the principles underlying the Regulations were breached in that criteria not referred to in the contract notice and specification were applied. The Court agreed and went on to conclude that had the tender not been wrongfully rejected it would have been successful. Aquatron were awarded damages equivalent to the profit they would have earned on the contract.

The issues considered by the court included which areas of the award process were reviewable under the Regulations and which were issues of commercial choice. The court had to assess what the outcome would have been had the authority applied the criteria from the contract notice to the competing tenders. In addition, the court ruled that it was not open to a contracting authority to rely on a reason for rejection of a tender which had not been in the notice given to the tenderer in accordance with the Regulations.

The pursuers were represented by Jonathan Lake of Axiom Advocates.

Aquatron Marine v Strathclyde Fire Board, Lord Carloway, 16 November 2007, [2007] CSOH 185

http://www.scotcourts.gov.uk/opinions/2007CSOH185.html