BAM Civil Limited and FB McCann Limited v Department for Infrastructure
| Jurisdiction | Northern Ireland |
| Judge | Maguire J |
| Judgment Date | 08 August 2018 |
| Neutral Citation | [2018] NIQB 68 |
| Court | Queen's Bench Division (Northern Ireland) |
| Date | 08 August 2018 |
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Neutral Citation No: [2018] NIQB 68
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: MAG10627
Delivered: 8/08/2018
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
________
QUEEN’S BENCH DIVISION
________
2017 No. 19714
BETWEEN:
BAM CIVIL LIMITED
and
FB McCANN LIMITED (BAM McCANN JOINT VENTURE, EACH ACTING
JOINTLY AND ON OWN BEHALF)
Plaintiff;
-and-
THE DEPARTMENT FOR INFRASTRUCTURE (TRANSPORT NI AS ROADS
AUTHORITY WITHIN THE DEPARTMENT FOR INFRASTRUCTURE,
FORMERLY THE DEPARTMENT FOR REGIONAL DEVELOPMENT)
Defendant.
_________
MAGUIRE J
Introduction
[1] It has long been recognised that the point of confluence between the Westlink
in Belfast and, on the one hand, the M2, and M3 (and M5), and, on the other hand,
York Street, constitutes a traffic bottleneck which urgently requires remedial
measures on a substantial scale. This need has given rise to the “York Street
Interchange Project”, the purpose of which is to relieve traffic congestion by an
extensive programme of works – costing some £90/£110m. An idea of the scope of
the project can be obtained from a consideration of its major elements. These include
the construction of approximately 5kms of road; the widening and realignment of
the Westlink north of its junction with Clifton Street; the building of new interchange
links providing connection with the three motorway networks; the construction of
four new underpasses and numerous retaining walls; and the erection or widening
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of some six bridges together with the provision (in some cases) of additional slip
roads.
[2] This case concerns a procurement competition in respect of the public works
which make up the project. The competition involved the award to a single
successful tenderer of three different contracts which together make up the project.
The contracts, in chronological order, were:
(a) NEC3 Professional Service Contract (PSC) Option E.
(b) NEC3 Engineering and Construction Contract Element Option B.
(c) NEC Engineering and Construction Contract Element Option C.
[3] Put broadly the above contracts can be ascribed to activities as follows:
(a) Phase 1 of the works.
(b) Archaeological and groundworks: which was a Phase 1 activity.
(c) Phase 2 of the works.
[4] The plaintiff is a joint venture consisting of two entities: BAM Civil Limited
and FP McCann Limited. Jointly, they have tendered for the contracts above which
constitute the public works. However, their tender ultimately was unsuccessful by a
narrow margin. The defendant is the Department for Infrastructure (formerly the
Department for Regional Development). It is the public authority responsible for the
procurement competition. The winning tenderer, Graham Farrans Joint Venture, has
been a notice party in these proceedings.
[5] In essence the plaintiff’s challenge is to the way in which the defendant
devised certain aspects of the competition and to the way in which the Evaluation
Panel (“EP”) established by the defendant assessed aspects of the plaintiff’s Tender
Submission Package (‘TSP’), more specifically, its quality submission. Issues have
been raised about the meaning of certain aspects of the questions which had to be
answered in the TSP and about whether the assessment of those answers was
manifestly in error.
[6] Overall the plaintiff’s case has been that the process was legally defective with
the consequence that the plaintiff ought to be entitled to an appropriate form of
judicial intervention and remedy.
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The competition
[7] As is usual in cases of this type, the competition was formally opened
following an advertisement in respect of it contained in the Official Journal of the EU
published on 25 November 2015. The relevant notice indicated that the procedure to
be used in respect of the procurement exercise was to be the restricted procedure. In
accordance with Regulation 28 of the Public Contracts Regulations 2015 (‘the 2015
Regulations’) any economic operator could submit a request to participate in the
competition by providing information for qualitative selection. In the light of that
information the contracting authority (here the defendant) was entitled to invite
economic operators to submit a formal tender.
[8] In this case the contracting authority invited three economic operators to
submit a tender.
[9] In order to enable tenders to be submitted the contracting authority published
a number of key documents. These provided the information necessary in order to
enable those invited to tender to prepare their TSP. The principal documents
provided by the contracting authority were a document called Instructions for
Tendering (“IFT”) and a document entitled “Scope of Services”.
[10] The IFT document, in particular, provided extensive information about what
was expected from a potential tenderer. The key element was that the tenderer was
informed that it would be responsible for the design, construction and
commissioning of the project. As already indicated, the project was to consist of two
phases to the works in accordance with individual contractual provisions which
dealt with each phase. In very broad terms, Phase 1 was concerned with the
development of the design and the establishment of the construction sequence in
detail. The object of Phase 1, inter alia, was to enable agreement to be reached as to
what was described as the Target (Total of the prices). On the other hand, Phase 2
was to be concerned with the actual construction of the principal works. The balance
as between the phases can be identified by the provisions in respect of duration of
the works. Under these provisions, Phase 1 was programmed to last for 10 months
ending with the agreement of the Target. In contrast, Phase 2 – the actual
construction works – was expected to have an approximate duration of 3 years.
[11] The ultimate criterion upon which the successful tenderer was to be identified
was that of the “most economically advantageous tender” (“MEAT”).
[12] In order to identify the most economically advantageous tender the
instructions for tender document identified for marking purposes two different
forms of submission. The first may be described as the “price submission” whereas
the second may be identified as the “quality submission”. Under the arrangements
set out in the IFT these submissions were to be assessed by different panels
concurrently. According to the design of the process, the panel dealing with the
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