There have been two important cases in the last year or so which concern the possibility of successful claims from bidders when procurements are abandoned. Those cases are Amey Highways Ltd v West Sussex County Council [2019] EWHC 1291 and Ryhurst Ltd v Whittington Health NHS Trust [2020] EWHC 448. The judgments make clear that:

(1) Contracting authorities must have genuine, rational and proper reasons for abandoning procurements and, if they do not do so, the bidders may be able to claim compensation.

(2) Contracting authorities have a right to abandon but they must still act transparently and proportionately, abide by the duty of equal treatment, act without discrimination, and avoid manifest error.

(3) The decision to abandon must be proportionate to the reasons given for that decision and the Court, whilst affording the contracting authority a margin of appreciation over its own decision making and the factors influencing it, will (if asked to do so) assess whether the abandonment was justified by reference to what was expedient in the public interest, what had changed in the time from the start of the procurement to the decision to abandon, the economic context, the facts, and the contracting authority's needs.

(4) The decision to abandon must not be outside the range of reasonable decisions which a contracting authority, having to balance a wide range of relevant factors and interests, could have arrived at. Both the decision to abandon and the reasons for abandonment must not be manifestly erroneous, irrational or disproportionate to the contracting authority's objectives. Abandonment must be objectively justified.

(5) The duty of transparency does not extend to a need for contracting authority to provide bidders with a running commentary on internal decision making processes and the factors influencing those decisions. However, care must be taken before binning a procurement and before communicating that decision.

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