Boxxe Ltd v The Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Mr Justice Constable |
| Judgment Date | 13 March 2023 |
| Neutral Citation | [2023] EWHC 533 (TCC) |
| Docket Number | Case No: HT-2023-000008 |
| Court | Queen's Bench Division (Technology and Construction Court) |
[2023] EWHC 533 (TCC)
Mr Justice Constable
Case No: HT-2023-000008
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
TECHNOLOGY AND CONSTRUCTION COURT
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
Mr Benjamin Tankel (instructed by Trowers & Hamlins LLP) for the Claimant
Mr Rupert Paines and Mr Oliver Mills (instructed by Government Legal Department) for the Defendant
Hearing date: 3 rd March 2023
Remote hand-down: This judgment will be handed down remotely by circulation to the parties or their representatives by email and release to The National Archives. A copy of the judgment in final form as handed down should be available on The National Archives website shortly thereafter but can otherwise be obtained on request by email to the Judicial Office (press.enquiries@judiciary.uk). The deemed time and date of hand down is 10.30am on Monday 13 th 2023.
Introduction
The Defendant, the Secretary of State for Justice (‘SoSJ’) applies pursuant to regulation 96 of the Public Contracts Regulations (‘PCR’) to lift the automatic suspension presently in place pursuant to regulation 95(1) PCR in relation to a mini-competition for a call-off contract relating to the provision of digital and audiovisual (‘AV’) equipment for use by His Majesty's Courts and Tribunals Service (‘the Competition’). The application is resisted by the Claimant Boxxe Limited (‘Boxxe’), the unsuccessful tenderer. Boxxe has applied for an expedited trial. Having considered the applications, and in light of the urgent nature of the application to lift the suspension, I granted SoSj's application to lift the suspension on Wednesday 8 March 2023, indicating that the detailed reasons would follow. This judgment sets out those reasons.
On 11 August 2022, the Defendant issued an Invitation to Tender (the “ITT”) for a call-off contract for the AV. The eventual supplier would be required to provide the equipment specified by the Defendant in the ITT. It would also be required to provide storage, in a secure facility, for the equipment ordered by SoSJ until such time as the SoSJ required it to be delivered to one of its sites. While the equipment remained with the supplier or in transit, the supplier would be entirely responsible for its security and would be liable for any loss, theft, or damage to it. A minimum of three months' free storage was required to be provided by the Supplier.
On 13 December 2022, SoSJ decided to award the Contract to Specialist Computer Centres Plc (“SCC”). This was notified to Boxxe together with feedback (‘the Decision Notice’) on the same date, and it was downloaded by Boxxe at 16.31. It provided the following information:
‘The following table summarises your scores against the Successful Tenderer:
Criteria
Boxxe's weighted score
Successful Tenderer's weighted score
Quality Srnrp (wisiighrprl 45%)
41.67%
43.79%
Social Value Scare (weighted 10%)
6.6%
5.0%
Equipment pricing (weighted 40%)
40%
37.97%
Storage service pricing (weighted 5%)
0%
5% *
Total Score
88.27%
91,76%
Boxxe's claim is that, on SoSJ's interpretation and application of the Competition rules, the contract was awarded to SCC not because SCC was the most economically advantageous tender (‘MEAT’). Rather, Boxxe claims that it was awarded to SCC as a result of what it describes as an arithmetic quirk within the pricing model that led to a perverse outcome i.e. the contract being awarded to a bid that was over £1million higher, without, it is said, any rationale.
The claim was issued on 12 January 2023. The challenge to the evaluation of storage pricing is set out over 7 grounds, summarised as follows:
Ground 1: SCC's bid was non-compliant, in that it failed to comply with the requirement to provide a substantive storage cost and/or involved price manipulation. It should be noted that, in use of the word ‘manipulation’, Boxxe does not intend to imply anything underhand, nefarious or dishonest. It is said that on account of this, SoSJ was required to disqualify the bid and breached its duty by failing to do so.
Ground 2: described as ‘undisclosed evaluation criteria’, Boxxe allege that the pricing formula ought to have been applied to all of the bids with all of the bids (for storage) being scored 0, and thereby levelling the playing field.
Ground 3: SoSJ failed to award the Contract to the MEAT, but instead awarded the Contract to the higher priced bid, as a result of the manipulation of the scoring.
Ground 4: SoSJ manifestly erred in failing to award the contract to MEAT;
Ground 5: SSC's bid was an ‘abnormally low tender’. SoSJ failed to conclude that this was the case as it would have done if the tender had been properly investigated. Following such inquiries, it would have been irrational and unlawful for SoSJ to take any step other than disqualify SCCP's bid on the grounds that it was non-compliant.
Ground 6. There was unequal treatment because SoSJ required Boxxe to provide a price for each element of the bid, even where the costs were notional only, and that SCC was not required to do so similarly.
Ground 7. SoSJ erred in including in the evaluation HDMCI to HDCI converters, which on Boxxe's design would be unnecessary.
Each of the grounds is resisted substantively by SoSJ. It is also said that the claims have been brought outside the 30 day limitation period required by regulation 92 PCR.
It is common ground that the test to be applied to applications of this nature is American Cyanamid, although, as set out further below, there are nuanced differences between the parties as to how the test is applied in the present context. Therefore, I consider the following (as summarised in a similar context by O'Farrell J in Camelot Global Lottery Solutions Limited v Gambling Commission [2022] EWHC 1664):
(1) Is there a serious issue to be tried?;
(2) If so, would damages be an adequate remedy for Boxxe if the suspension were lifted and they succeeded at trial; is it just in all the circumstances that Boxxe should be confined to a remedy in damages?;
(3) If not, would damages be an adequate remedy for SoSJ if the suspension remained in place and it succeeded at trial?;
(4) Where there is doubt as to the adequacy of damages for either of the parties, which course of action is likely to carry the least risk of injustice if it transpires that it was wrong, that is, where does the balance of convenience lie?
I have read and considered the evidence submitted from Mr Edgerton on behalf of SoSJ (three witness statements), and Mr Clark and Mr Hulland (two statements) on behalf of Boxxe. I have also read the letter submitted to the Court on behalf of SCC, the successful tenderer.
At the outset of oral submissions, I informed the parties that the Court would be able to accommodate an expedited trial, if one were to be ordered, in July 2023.
Serious Issue to be Tried
Notwithstanding it is the position of SoSJ that the claim has no prospect of success (and a strike out application has been issued), the substantive merits were not the subject of Mr Paines contention, on behalf of SoSJ, that there is no serious issue to be tried. Notwithstanding the brief submissions by Mr Tankel, on behalf of Boxxe, going to the substantive merits, it would not be appropriate for me to make any findings in relation thereto. Instead, Mr Paines confined his submission to the contention that each ground was out of time. He relied upon the observation of Vos J (as he then was) in Alstom v Eurostar International Limited [2010] EWHC 2747 that, ‘ if there were a strong argument that the claims were statute barred, then it would affect my ultimate view as to whether there was…a serious issue to be tried.’ In Camelot, with reference to this passage, O'Farrell J included the phrase ‘ clear case’ alongside ‘strong argument’.
Whilst accepting that the test before me is whether there is a serious issue to be tried, Mr Paines urged me to determine the question of whether the claim(s) were out of time finally. Mr Tankel submitted that it would not be appropriate to consider the matter finally, and that in circumstances where the law was unclear, as he contended it was, I should determine that there was a serious issue to be tried, and leave a conclusion on the issue, either way, to be determined as part of the forthcoming strike out application. He also contended that I should take into consideration Boxxe's application to extend time in respect of Grounds 1, 2, 3, 4 and 7 should they be considered to have been out of time. That application was made on the very eve of the hearing of the suspension application, and was not before the Court for determination at that hearing. Boxxe had proposed that that application be heard at the same date as the strike out application.
Regulation 92 PCR states:
‘ (1) This regulation limits the time within which proceedings may be started where the proceedings do not seek a declaration of ineffectiveness.
(2) Subject to paragraphs (3) to (5), such proceedings must be started within 30 days beginning with the date when the economic operator first knew or ought to have known that grounds for starting the proceedings had arisen…’
As set out above, the Decision Notice was issued and received in the afternoon of 13 December 2022. Put shortly, if 13 December is counted within the 30 day calculation, the period expired on 11 January 2023 and (subject to Boxxe's point relating to knowledge for the purposes of Grounds 5 and 6), the claims issued on 12 January 2023 were out of time. If 13 December 2022 is excluded from the calculation (such that the first day of the 30 days is 14 December 2022), the claims were issued in time.
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