Corelogic Ltd v Bristol City Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Akenhead |
| Judgment Date | 18 July 2013 |
| Neutral Citation | [2013] EWHC 2088 (TCC) |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Docket Number | Case No: HT-13-134 |
| Date | 18 July 2013 |
[2013] EWHC 2088 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Akenhead
Case No: HT-13-134
David Gollancz (instructed by Veale Wasbrough Vizards) for the Claimant
Rhodri Williams QC (instructed by Bristol City Council Legal Services) for the Defendant
Hearing date: 10 July 2013
Introduction
This judgment relates to an application by the Claimant in this public procurement case to amend its Claim. It arises in the context of there being a 30 day limitation period for Claims to be issued and served running from the date when the Claimant first knew or ought to have known that grounds for starting proceedings had arisen. This needs to be correlated with the established rules under the Limitation Act 1980 and CPR Part 17.4 which do not allow amendments which add "new claims" which at the time of the amendment are barred by limitation.
The Background
Corelogic Ltd ("Corelogic") provides computer based case management systems to public sector customers and was one of two tenderers in a "mini competition" conducted by Bristol City Council ("Bristol") under the terms of a framework agreement which was governed by the Public Contract Regulations 2006 (as amended) with regard to the provision of a computer-based Adult Social Care case management system. The framework agreement had been established by the Office of Government Commerce for the provision of local government software application solutions and Bristol was one of the contracting authorities entitled to award specific contracts for services under the terms of the framework agreement, which permitted such authorities to run a tendering or "mini" competition for specific contracts.
In November 2012 Bristol notified Corelogic that it wished to seek tenders for the provision of a new adult social care management system and associated financial module. Bristol issued the invitation to submit tenders on 21 November 2012 to Corelogic and another company Liquidlogic. This invitation purportedly identified that 90% of the marks for award related to "Statement of Requirements ["SOR"] and Pricing" and 10% to "User Demo". The SOR and Pricing element was broken down into Fitness for Purpose (attracting 45% of the marking), Total Cost of Ownership (42.3%) and Delivery Services (2.7%), all after weighting. There were five different Pricing Schedules including "Software, Maintenance and Support" which set out 12 heads of items which were to be priced by reference to a unit price, quantity and price.
Corelogic submitted a tender on 2013. On 22 March 2013 Bristol wrote to Corelogic in the following terms:
"I am writing to advise you that your tender for the above contract has not been successful.
The award of this contract was concluded and ran as a further competition…and as such is not subject to the full rigour of the EU rules with regard to an Alcatel Standstill Period.
However…the Council intends to follow a standstill period for this particular further competition as it is deemed best practice to demonstrate that a transparent and fair process was followed…The stand-still period will therefore expire 1 April 2013.
The Council has decided to award this contract to Liquid Logic…
The scores for your tender and the successful tenderer are compared as follows:
[Liquidlogic scored 72.09% on the SOR and Pricing and 6.91% on the User Demo against Corelogic's 64.41% and 6.70% respectively]"
Corelogic emailed Bristol on 25 March 2013 asking for a "debrief/feedback discussion" and also for confirmation of this price which Bristol took into account for its bid and how that was broken down. Following several reminders, Bristol wrote back on 27 March 2013 extending the stand-still period until midnight 8 April 2013, repeating the overall scores for the two tenders and saying:
"This price for your tender was £994,965.00. (The price was for implementation and 7 year on-going costs. The price included the upgrade/fix/patch (managed service), and the discounted "bundle" pricing for 5 interfaces, as these were core requirements as stated in the tender documents. It also included your "goodwill" delay in charging support and maintenance costs.)
The price for the Liquid Logic tender was £868,075.00…"
The document runs on for several more pages explaining why Liquidlogic were stronger on different parts of the bids.
Corelogic e-mailed back that evening asking a variety of questions including:
"1. How many users did you use for the pricing evaluation (750, 1000 or 1,250)?
2. Please can you provide full details of all components of our pricing that you took into account to reach the figure of £994,965.00 as we are unable to.
3 Please can you clarify the statement: "The price included the upgrade/ fix/ patch (managed service)"? Upgrades/ fixes/patches are included as standard under our Maintenance and Support agreement (Appendix V in our submission) and are therefore all covered by the support payment that we quoted (£15,510 pa for 750 users)."
Bristol replied on 3 April 2013:
"Despite your further requests for information, the Council would like to now reiterate it's position described within the latter sections of this letter, indicating that it feels it has fulfilled it's obligations under the principles of the standstill period, treated all bidders fairly and transparently and carried out the tender process as stated in the original ITT documentation.
Therefore, the Council will not be restarting the standstill period as a result of the latest email request for feedback from Corelogic and intends to conclude contractual arrangements with the winning bidder as planned (midnight 8th April). As previously indicated, the Council will offer an opportunity for a debrief once the standstill period has expired."
Corelogic through its then solicitors Morgan Cole LLP wrote back on 5 April 2013:
"1. We have been instructed by Corelogic in relation to the Tender and have been passed copies of your recent correspondence including your letters dated 22 and 27 March 2013 and 3 April 2013…Your letters suggest that you have provided what you consider to be sufficient information to fulfil your obligations to ensure a transparent and fair process.
2…Whilst Corelogic is grateful for the information provided as to why its bid was unsuccessful, we are writing to confirm our advice to Core logic that the information you have, to date, provided it is inadequate and does not comply with the obligations imposed upon the Council by the Public Contracts Regulations, as amended.. and the general EU Treaty principles of transparency, openness and non-discrimination.
3. The purported award decision notice issued on 22 March 2013 is incomplete and does not comply with the requirements of the Regulations. In particular, the Council has failed to provide sufficient information pursuant to Regulation 32 relating to the scores received by either LL or Corelogic, setting out the characteristics and relative advantages of the successful tender to enable Corelogic to understand properly the reasons for the Council's decision…
Flawed Award Decision Notice
6. The 2006 Regulations…provide as follows:
Regulation 32 — Information about contract award procedures…
7. The purported notice you have served fails to set out sufficient reasons to meet the requirements of Regulation 32 (2) (b).
8. The test as to what constitutes sufficient reasoning for the purposes of a decision notice and to satisfy Regulation 32 (2) (b) comprises two stages and was set out in the cases of Alstom… and the various decisions in the Dynamiki litigation…This requires contracting authorities to provide all information:
8.1 that would be necessary for the unsuccessful bidder to determine whether or not a decision is well founded; and
8.2 to enable that bidder to have sufficient information to be able to assert its rights before the Court.
9. It is simply not possible for Corelogic to do either of these things for the reasons set out below.
9.1 Corelogic has not been provided with the scores for SOR…
9.2 Corelogic does not know how it scored relative to LL…
9.3 Corelogic does not know the basis upon which it was scored in the "Total Cost of Ownership" section
9.3.1 In complete contrast to the detail provided by the Statement of Requirements Document for the "Fitness for Purpose" element of the Tender, the Council has failed entirely to provide any criteria or scoring methodology for the "Total Cost of Ownership" section of the Tender. It is entirely unclear as to how a bidder could receive full marks for this section, something which would affect how tenders are put together.
9.3.2 Corelogic has no idea why it received a weighted score of 37.75% or why LL was given 43.84% in comparison.
9.3.3 Corelogic has also not been provided with any information about the marks either it or LL received for this section.
9.3.4 In the circumstances, without further information from the Council, it appears that this section has been marked using undisclosed sub-criteria. Again, this constitutes a breach of the Regulations, in particular the requirement of openness, fairness and transparency…
9.4 Corelogic does not know what pricing elements of its bid were used by Bristol to arrive at the figure of £994,965 as being the total price of the contract
…9.4.2 Our client's own analysis of the contract price is set out below, which evidences that the TCO is significantly less than this for 750 users. [There then follows a table which shows this analysis which produces a total of £331,360].
9.4.3 This is highly relevant since, based on the above, and without prejudice to the deficiencies already set out in relation to the lack of scoring...
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