The High Court has permitted the Health Service Executive (HSE) to conclude a temporary contract with Freightspeed for storage and distribution of disposable continence products, lifting an automatic suspension that had prevented the contract from proceeding.
Mr Justice David Barniville made the order on 29 January 2018, after an urgent hearing on 26 January. The contract followed a short-term procurement process launched by the HSE while earlier proceedings over a separate, longer distribution contract remained unresolved. The bridging contract was initially for three months, with possible extensions at three-month intervals up to 12 months, and could be terminated on one month’s notice.
Homecare Medical Supplies, which had unsuccessfully tendered for the bridging contract, challenged the procurement and its award to Freightspeed. Its claims included alleged breaches of equal treatment and transparency, unlawful tender evaluation, and an alleged circumvention of the automatic suspension in its earlier proceedings. The HSE accepted for the purposes of this application that the claims raised serious issues for trial. The judge also said Homecare’s challenge to the validity of the legal framework and use of the Campus Oil test raised issues to be tried.
The judge did not determine whether the procurement was lawful, decide Homecare’s claims, or resolve the parties’ dispute over whether the HSE could extend its existing arrangements. He also declined to decide an HSE allegation that Homecare had participated in the tender without good faith, saying the affidavit evidence was disputed and the witnesses had not been cross-examined.
Applying the Campus Oil approach and also considering the test in the Remedies Regulations, the judge concluded that Homecare had not shown damages would probably be inadequate for it if the suspension were lifted. He found, however, that damages would not adequately compensate the HSE if the suspension remained and it later succeeded. He cited the risk to patients’ welfare if distribution were interrupted, uncertainty over whether the existing supplier would continue supplying Homecare and at what prices, and the absence of an unqualified undertaking to cover damages.
The balance of convenience also favoured lifting the suspension, the judge held. He stressed the need for continuity of supply after 31 January and the HSE’s position that it would not extend the existing contracts. Under the alternative consequences test in the Remedies Regulations, he was satisfied that the order’s negative consequences would not exceed its benefits.
The order allows the HSE to conclude the bridging contract with Freightspeed. The broader proceedings challenging the HSE’s procurement decisions and the legal framework were still awaiting determination.