The judgment in the recent High Court battle between Energy Solutions and the Nuclear Decommissioning Authority was a landmark in public procurement law – and a salutary warning to corporate general counsel.Energy Solutions challenged the authority’s award of a major contract for the decommissioning of 12 nuclear sites. If the challenge was successful, it would send a signal to the public sector that claims for damages were a real risk, having often been discounted as unlikely to be pursued by unsuccessful bidders.However, a last-minute twist threatened to derail the challenge. It emerged that several of the claimant’s witnesses stood to receive significant bonuses if the claim was successful. The authority seized on this as an opportunity to strike out the claim completely.At a further hearing, the judge was satisfied that no criticism should be levelled at the witnesses. From their perspective, the litigation bonuses were in lieu of others they would have received had they won the contract.

Source: The Brief – Thursday, August 25 2016

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