NATS (Services) Ltd v Gatwick Airport Ltd & Anor
2014
TECHNOLOGY AND CONSTRUCTION COURT
UK
CORAM
- Mr Justice Ramsey
Areas of Law
- Commercial Law
- Contract Law
2014
TECHNOLOGY AND CONSTRUCTION COURT
UK
CORAM
AI Generated Summary
In this case, NATS, an unsuccessful tenderer, sought to prevent GAL from entering contracts with DFS on the basis that the procurement process was subject to the Utilities Contracts Regulations 2006. The court recognized a serious issue to be tried regarding the application of these Regulations and refused to lift the automatic suspension. An interlocutory injunction was granted, preventing GAL from entering into any contract with DFS until after an expedited trial.
Judgment
Mr Justice Ramsey:
Introduction
These proceedings relate to a procurement carried out by the Defendant (“GAL”) for the provision of air traffic control services at Gatwick Airport (“the Procurement”). GAL is the operator of Gatwick Airport and provides airport and other terminal facilities to airlines. The Claimant (“NATS”) is a company, which specialises in air traffic management services.
NATS was an unsuccessful tenderer in the Procurement. It contends that the Procurement was subject to or was carried out under the Utilities Contracts Regulations 2006 as amended (“the Regulations”) and therefore that, by commencing these proceedings in relation to the Procurement, GAL is prevented by the operation of the automatic suspension provision in Regulation 45G of the Regulations from entering into contracts with the successful bidder.
GAL contends that the Regulations do not apply to the Procurement but that, if they do, it seeks to lift that automatic suspension. If the Regulations do not apply then, in the alternative, NATS seeks an interim injunction to prevent GAL from entering into contracts with the successful tenderer on the basis that there have been breaches of an implied tender contract.
On the applications by NATS and GAL, I have been provided with witness statements from Ms Catherine Mason, the managing director of NATS, Mr Robert Herga, general counsel and company secretary of GAL and Mr Dirk Mahns, managing director of a wholly owned subsidiary of DFS Deutsche Flugsicherung GmbH (“DFS”), the successful tenderer.
Background
GAL published its intention to carry out the Procurement in the Official Journal of the European Union (“OJEU”) on 2 October 2013. The tender was divided into two lots. Lot 1 related to air navigation services, including provision of staff for those services and Lot 2 related to maintenance and repair of equipment. The Procurement proceeded by way of Invitation to Tender (“ITT”), a negotiation phase and then the submission of best and final offers (“BAFO”).
NATS submitted its BAFO for Lots 1 and 2 on 2 June 2014. By letter dated 18 July 2014 GAL notified NATS that its tender had been unsuccessful and that DFS had been successful. In the correspondence that followed NATS sought further information and GAL contended that it did not come within the Regulations.
On 18 August 2014 GAL wrote to NATS to give them 7 days’ notice that GAL intended to enter into the contract with DFS. NATS therefore issued proceedings