Bristol Missing Link Ltd v Bristol City Council (Defendant/Applicant)
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr. Justice Coulson,The Hon. Mr Justice Coulson |
| Judgment Date | 01 April 2015 |
| Neutral Citation | [2015] EWHC 876 (TCC) |
| Docket Number | Case No: HT-2015-00043 |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 01 April 2015 |
[2015] EWHC 876 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Royal Courts of Justice,
Rolls Building,
Fetter Lane, London, EC4A 1NL
The Honourable Mr. Justice Coulson
Case No: HT-2015-00043
Mr Jason Coppel QC and Mr Joseph Barrett (instructed by Bevan Brittan LLP) for the Claimant/Respondent
Mr Rhodri Williams QC (instructed by Bristol City Legal Services) for the Defendant/Applicant
Hearing date: 26 March 2015
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
In these proceedings, the claimant, Bristol Missing Link Ltd ("BMLL"), challenges the procurement of a significant contract for domestic violence and abuse support services in Bristol. The challenge is made under the Public Contracts Regulations 2006 ("the Regulations"). The defendant, Bristol City Council ("the Council") wishes to award the contract to another tenderer, Refuge.
Because of the challenge, Regulation 47G(1) imposed an automatic stay and prevented the Council from entering into the proposed contract with Refuge. By an application made on 27 February 2015, pursuant to Regulation 47H, the Council sought to lift that automatic stay. The hearing of that application took place on 26 March. At the end of that hearing, I told the parties that the automatic stay would remain in place until the conclusion of the expedited trial in June of this year. I said I would provide my detailed reasons for that decision in writing.
The Factual Background and the Claim
Background
On 8 July 2014 the Council issued an invitation to tender for the award of a contract entitled 'Bristol City Council Domestic Violence and Abuse Support Service'. The invitation stipulated a tender return date of 6 October 2014. The contract was to be awarded for a three year period starting on 1 April 2015, with an option to extend for a further two years. It also explained that the tender evaluation would be carried out in two stages. Stage one involved questions to ensure that the tenderers met the Council's minimum requirements. Stage two was an evaluation of the tenders according to the evaluation criteria.
There was an 80/20 split in the weighting of the award criteria between Quality and Price respectively. In respect of Quality, the principal element was Service Delivery, which was worth 70% of the Quality component of the score, and which was itself subdivided into eight, separately weighted sub-criteria. The evaluation was subject to a scoring matrix where individual scores were to be awarded for each sub-criteria, on a scale of 0–5.
BMLL are the incumbent providers of this important service to the Council. They submitted a tender by the due deadline. The Council received two other tenders, including one from Refuge. The other tenderer did not get past stage one and can be discounted for present purposes. Although the Council said that they would inform the tenderers of the result of the competition in early December 2014, it was not until 8 January 2015 that BMLL were informed that their tender had been unsuccessful. At the same time, Refuge were told that their tender had been successful.
There then followed detailed correspondence, first between BMLL and the Council, and then through BMLL's solicitors, in which BMLL's unhappiness with the result, and their concerns over the tender evaluation process, were debated. One feature of that correspondence, to which I shall return in a moment, was BMLL's repeated attempts to see the material relating to the evaluation of Refuge's tender. Although BMLL offered that these documents would be disclosed into a confidentiality ring, the Council refused to provide copies of Refuge's tender, and the primary evaluation documents relating to that tender. The Council did, however, provide certain information relating to the evaluation of BMLL's tender.
On 5 February 2015, as a result of the failure to resolve the issues between the parties, and in the light of the strict timetable provided by the Regulations, BMLL commenced these proceedings. Their detailed particulars of claim were served on 12 February 2015. The Council provided a defence on 4 March 2015. By then, the Council had made this application to lift the automatic suspension.
Claim
The claim made by BMLL divides into two, connecting parts. The first allegation (paragraphs 40–41 of the Particulars of Claim) complains that their scores were subsequently adjusted downwards from the individual scores produced by the five members of the evaluation panel, as part of a subsequent moderation process. Paragraph 41 states:
"It is averred that after the final tenders were open, and after evaluators had scored the claimant's tender, the defendant systematically adjusted downwards the scores awarded to the claimant's tender in respect of a number of responses. In each instance, the adjusted score was below the score awarded by all/or a clear majority of the evaluators. In so doing, the defendant breached its duties of equal treatment and transparency. No proper explanation or documents have been provided by the defendant in respect of this process. The claimant will seek full particulars and disclosure of all relevant documents regarding each such adjustment."
Some of the documents that have been voluntarily disclosed by the Council go to this issue. Thus, for example, we know that BMLL's tender on sub-criteria 2.5 was the subject of scores from the individual evaluators of 4, 4, 4, 4, 4 and 3. These were subsequently moderated to an overall score of 3, but no explanation for that result has been provided. Similarly, BMLL's tender for sub-criteria 2.7, with individual evaluation scores of 4, 4, 5, 4 and 3, was also given an overall score of 3, but again no explanation for that reduction has been provided.
In response to this allegation, paragraph 26 of the Council's defence averred as follows:
"As to paragraph 40 and 41, it is admitted that as part of the moderation of the scores initially attributed by individual members of the evaluation panel, the various scores of all tenderers were discussed and 'moderated' with a final score for each award criterion for each tenderer being agreed by the evaluation panel as a whole. In so far as this may have involved the 'adjustment' of any particular score, it is averred this was a wholly lawful way of conducting the evaluation process and one that is routinely adopted by evaluation panels consisting of more than one individual evaluator. Save as aforesaid, paragraph 40 and 41 are denied. It is specifically denied that the defendant was in breach of its duties of equal treatment and transparency."
That is the extent of the pleaded response on the moderation issue. Unsurprisingly, therefore, BMLL complain that the Council has not engaged with the detail of their complaint. That is a point to which I will return, when I deal with the Council's submission that there is no serious issue to be tried.
The second element of the claim made by BMLL focuses on the individual scores awarded for each sub-criteria. The criticisms are put in two ways. First, there is a criticism of the score awarded to BMLL by reference to the Council's own tender evaluation criterion. A point made by BMLL is that they were repeatedly awarded a score of 3, which is the maximum that could be awarded, unless the tenderer could show that it was adding value and exceeding the contract specification. BMLL maintain that, for 6 out of the 11 sub-criteria, they were awarded a score of 3, when their tender (on their case) plainly exceeded the contract specification for each item, and should therefore have been awarded at least a score of 4.
Thus, by way of example, paragraph 49 of the Particulars of Claim deals with sub-criteria 2.2. The pleading is in the following terms:
"The Defendant purported to score the Claimant's response at 3/5. On a proper and lawful application of the published award criterion the Claimant's response required a score of at least 4/5. In the absence of any proper account of the reasons on which the Defendant purports to justify the score awarded, the Claimant provides herein the best particulars currently available. As expressly admitted in the Defendant's letter of 14 December 2014, the Claimant's response satisfied all of the contract specification requirements. However, the Claimant's response also exceeded the contract specification requirements/added value so as require a score of 5/5, or at the very least 4/5. Without prejudice to the foregoing, it is averred that the Claimant's response provided for: (a) clinical supervision by a qualified therapist, (b) worker specialisms, including specialist crisis workers, a complex needs worker and BME support workers, (c) a separately funded volunteer coordinator and volunteers, (d) 3 publicly accessible offices in locations offering convenient access for service users, (e) AQS Accreditation, and (f) AQA training provision. Further, the Defendant's own evaluation documents record that the Claimant's response was scored by evaluators at 4/5, before being adjusted downwards. The Defendant has yet to provide any proper particulars or disclosure regarding the downward adjustment of the Claimant's score."
The response to this can be found at paragraph 31 of the defence. The Council pleads in response to this detailed allegation in the following terms (which are repeated verbatim for each item):
"As to paragraphs 49 – 53, it is specifically denied that the Claimant's...
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