HT-2025-000079 - [2025] EWHC 2634 (TCC)

As I explained above the court needs to view with considerable caution assertions by an unsuccessful tenderer (even one who was the incumbent under an existing contract) that the loss of a contract will cause reputational damage having a commercial effect or will harm the unsuccessful tenderer’s prospects of obtaining other contracts.

Mr Barrett accepted that the Contract was not in the category of exceptionally prestigious contracts the loss of which could by reason of their prestigious nature alone cause the loss of other contracts. He did, however, submit that I should accept the Claimant’s contention that there would be harm to its prospects of obtaining other contracts. It was said that the other members of the “Five Eyes” (the United States, Canada, Australia, and New Zealand) and potentially other NATO members or European nations would have regard to the identity of the contractor providing medical services to the United Kingdom armed forces when placing contracts for their own services. However, this was put at a high level of generality. It was not suggested that there was anything akin to the circumstances in Draeger when other fire authorities were awaiting the outcome of the particular procurement exercise with a view to following the lead of the London Fire Brigade. It is of note that the group of which the Claimant is the United Kingdom element already provides medical support services to the United States armed forces. The Claimant itself can point to an established record of providing those services to the Defendant and there is no suggestion that there was any inadequacy in its provision of those services. The Claimant’s evidence gives details of the extensive nature of its operations and those of the group of which it is a member. The existing contract provides only 3.6% of the revenue of the Claimant and is not the largest medical services contract which the Claimant has (although it is the second largest). In those circumstances it cannot be said that the loss of the Contract is likely to have an impact on the Claimant’s other commercial dealings.

Assertions that the loss of a contract will have an impact on a claimant’s business operation are also to be viewed with caution. Here it is said that the failure to obtain the Contract will lead to the loss of 5 – 7 staff posts. I have just noted that only 3.6% of the Claimant’s revenue is attributable to the existing contract. In those circumstances the impact on the Claimant’s business operation is simply not of the scale which would be required before the court could say that damages would not be an adequate remedy.