CMAC Group UK Ltd v Abellio Trandport Holding Ltd and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Pepperall |
| Judgment Date | 17 September 2021 |
| Neutral Citation | [2021] EWHC 2822 (TCC) |
| Docket Number | No. HT-2021-000306 |
| Court | Queen's Bench Division (Technology and Construction Court) |
[2021] EWHC 2822 (TCC)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS
OF ENGLAND & WALES HT-2021-000307
TECHNOLOGY & CONSTRUCTION COURT (QBD) HT-2021-000308
Rolls Building
Fetter Lane
London, EC4A 1NL
Mr Justice Pepperall
No. HT-2021-000306
Mr J. Barrett appeared on behalf of the Claimant.
Mr N. Giffin QC (instructed by Stephenson Harwood) appeared on behalf of the Defendants.
This case concerns the lawfulness of invitations to tender and negotiate issued by or on behalf of a number of rail operating companies for replacement bus and taxi services. Such replacement services are required for use in the case of disruption to the rail network, whether planned disruption during maintenance works or on an emergency basis.
BACKGROUND
On 16 July 2021, West Midlands Trains published its invitation to tender and negotiate in respect of its replacement rail services. Such tenders were sought on the assumption that Abellio Transport Holdings Ltd would be successful in being awarded the national rail contract for West Midlands Trains. On the same day, Abellio East Anglia Ltd published an invitation to tender in respect of services run under its trading name, Greater Anglia. On August 2021, Abellio Transport Holdings Ltd published its own invitation to tender in respect of train services operated by Abellio East Midlands Limited trading as East Midlands Railway. Each of the invitations stated as follows:-
“The Utilities Contracts Regulations 2016 … do not in accordance with their terms apply to the Emergency Ad-hoc and Planned Rail Replacement Buses and Taxi Management Services … Neither the issue of this ITN nor the selection of any Bidder, nor any other document, contact or conduct in connection with this ITN constitutes any acceptance by [Abellio] that the Regulations apply to the Project covered by this ITN, or an agreement by [Abellio] to abide by those Regulations. The ITN Process and any subsequent contact awarded will be subject to English law and the exclusive jurisdiction of the English courts. By participating in the ITN Process, a Bidder agrees to be bound by the above conditions and limitations…”
Having expressed its interest in providing such replacement rail services, CMAC Group UK Ltd was invited to tender for the contracts for the West Midlands, East Midlands and Greater Anglia regions. CMAC does not, however, accept that the rail companies are right in their assertion that these procurement exercises are not governed by the 2016 regulations. CMAC argues that the operators are “utilities” within the meaning of the regulations and that, accordingly, the rail operating companies are conducting the procurements unlawfully
In pre-action correspondence, CMAC pressed the point that the regulations were applicable and, secondly, sought assurances as to whether or not the rail companies would take any time point in the event that they did not issue immediate proceedings. The rail companies in turn reasserted their view that the regulations were not applicable, but nevertheless indicated that it was their intention, notwithstanding the alleged lack of legal obligation, to conduct the procurements in accordance with the principles of the regulations. No assurance was given as to the limitation position.
In those circumstances, CMAC issued these three claims on 13 August 2021. Claim HT-2021-000306 challenges the lawfulness of the East Midlands procurement exercise. Claim 307 makes a like challenge in respect of the West Midlands procurement, while claim 308 relates to the Greater Anglia procurement. All three claim forms were served on 20 August.
By application notices issued on 10 September 2021, CMAC now seeks orders consolidating the three claims, and then staying proceedings until the earlier of the date of the contract award decisions in each procurement or the expiry of five working days' notice given by CMAC. I have not yet been addressed on the question of consolidation but will briefly hear the parties after giving judgment on the principal matter before me today.
By an open letter dated 15 September 2021, Stephenson Harwood, the solicitors for the rail companies, proposed terms on which they would agree to a stay. Terms were not, however, agreed and the rail companies' primary position before me is that no stay should be ordered.
THE ARGUMENT
Joseph Barrett, who appears for CMAC, argues that the company was forced to issue proceedings protectively because the time for bringing a procurement challenge ran from the date when it became clear that the rail companies denied their obligation to comply with the 2016 regulations and required bidders to accept such state of affairs. He asserts that this is not simply a case of anticipatory breach, but that including a stipulation requiring the bidders' agreement that they should contract out of the 2016 regulations was, itself, an actual breach of procurement law. Since, however, it remains possible that CMAC might be successful in its bids for one or more of the procurement exercises, such that it would not, in fact, suffer any loss or damage, Mr Barrett argues that the appropriate and proportionate course is to stay the proceedings.
Nigel Giffin QC, who appears for the rail companies, stresses the importance of hearing public procurement challenges rapidly. He complains about the three-week delay between the issue of the procurement challenges and the issue of these applications. He argues that an economic operator who chooses to issue a procurement challenge must properly particularise its claim and be prepared to get on with it. There is, he argues, no place for protective claims. Here, he complains that CMAC simply asserts that the rail companies have refused to accept any legal obligation to comply with the 2016 regulations, but that it does not assert any way in which, as a matter of fact, the companies' conduct has departed from the statutory regime. He argues that if CMAC contends that there is some existing or anticipated breach of the regulations, such claim needs to be properly particularised and resolved speedily.
Mr Giffin complains that no proper particulars have been pleaded of the assertion at paragraph 13 of the...
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