Excession Technologies Ltd v Police Digital Service
| Jurisdiction | England & Wales |
| Judge | Mrs Justice O'Farrell DBE,Mrs Justice O'Farrell |
| Judgment Date | 25 February 2022 |
| Neutral Citation | [2022] EWHC 413 (TCC) |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Docket Number | HT-2021-000147 |
[2022] EWHC 413 (TCC)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
TECHNOLOGY AND CONSTRUCTION COURT (QBD)
Royal Courts of Justice
Rolls Building, London, EC4A 1NL
Mrs Justice O'Farrell DBE
HT-2021-000147
Parishil Patel QC (instructed by Trowers and Hamlins LLP) for the Claimant
Joseph Barrett (instructed by TLT LLP) for the Defendant
Hearing dates: 25 th & 26 th August 2021
Further written submissions: 30 November 2021 & 2 December 2021
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.
The matter before the Court concerns a procurement challenge arising out of a tender exercise carried out by the Police Digital Service (“PDS”) for the appointment of a contractor to a framework agreement for the provision of computer and information technology services in respect of a covert surveillance operation room (“the SOR”).
This is the trial of the following preliminary issues:
i) Was the Defendant, PDS, entitled to rely on the exemption under regulation 7(1)(b) of the Defence and Security Public Contracts Regulations 2011 (“the Regulations”) in relation to the procurement with contract reference: PICT 108–2020 (“the Procurement”)?
ii) Are the claims pleaded at paragraphs 40–42, 46, 47–48 and 49 of the Particulars of Claim subject to the statutory time-bar pursuant to regulation 53 of the Regulations?
iii) Is the Procurement governed by an alleged implied contract between the Claimant, (“Excession”), and the PDS containing the terms alleged by Excession in the Particulars of Claim?
Background
On 22 March 2019 an outline business case was published by the National Police Chiefs' Council, setting out a blueprint for the delivery of a national network of SORs with enhanced capability and minimum standard operating procedures, enabling improved connectivity and interoperability across counter-terrorism and serious organised crime capabilities. The executive summary stated:
“To keep pace with the evolving threat from Counter Terrorism (CT) and Organised Crime (OC) a transformation in the way in which we utilise and manage covert assets is required.
The ever-changing threat picture demands greater resilience across organisations and more sophisticated types of Surveillance. Although recent events have demonstrated the willingness of agencies across CT and OC to provide crucial support in times of demand, the configuration of covert SOR, how they have been designed and how they assist in the delivery of surveillance deployments, do not promote the agility and ability to surge at time of demand.
…
The surveillance operations rooms project seeks to deliver a fully connected and interoperable national SOR network in England and Wales, in a phased approach subject to a proof of concept evaluation to enable an agile capacity to meet the business needs.
• Implementation of a blueprint which defines the future minimum requirements of SORs to enable an agile capacity to meet the business needs, servicing local, regional, national and international requirements and surge demand requirements within CT/OC
• Exploitation of emerging digital opportunities to enable more effective and agile deployments
• Facilitate enhanced interoperability with CT/OC partners UK wide including MI5, MOD, NCA, Police Organised Crime (force and ROCU level), PSS and PSNI
• Necessary Memorandums of Understanding, Service Level Agreements and Information Sharing Agreements to support national operations
• Standard business processes, based upon national protocols …”
A summary of the SOR categories was stated to be:
i) capability to provide basic intelligence support to a single surveillance team;
ii) capability to coordinate communications and provide lifetime tactical and intelligence support to a surveillance deployment with limited additional specialist capability;
iii) enhanced capability with capacity to command, coordinate communications and provide lifetime tactical and intelligence support to multiple surveillance teams and additional specialist capabilities;
iv) enhanced capability with capacity to command multiple teams and provide lifetime strategic, tactical and intelligence support, including the ability to record all covert radio transmissions, telephony and key decisions in response to nationally significant events or high threat scenarios.
A CSOR Manual of Standards published by the National Surveillance User Group in 2019 described the business needs as follows:
“Directed surveillance takes investigators to places they would not otherwise realise by other more conventional investigation tactics.
Technological advancements in the situational awareness and command and control drive the need to maintain expertise to continue effectively impacting and disrupting OC and CT threats, in line with HMG directive.
Ongoing evaluations have identified weaknesses, inconsistencies and interoperability shortcomings in currently utilised surveillance technological, hindering advancement in line with changing sophisticated threat of organised crime and terrorism. Additionally the ability to provide surveillance product in real time to SIOs and investigators, to enable effective tactical and strategic decision making and case direction.
Identification of and investment in a bespoke interoperable system will sustain and advance policing's covert capability ensuring we are at the forefront of tackling our threats with the tools required to do the job effectively.”
Identified requirements included:
“The provision and use by SOR, surveillance operatives and investigators of a single, fully interoperable platform, complying with the 2007 IPCC Stockwell Report recommendations, the Criminal Procedures and Investigations Act 1996 and NPCC Authorised Professional Practice Guidelines.”
In April 2019 the business case was approved and, from November 2019 to March 2020, Excession undertook a ‘proof of concept’ pilot (POCP). The evaluation report following the proof of concept pilot stated:
“The POCP supports the adoption of a single cloud based solution hosting a suite of applications, with SORs operating to national mandated standards and has demonstrated how teams from different agencies can work together and share intelligence. This would deliver the concept of shared surveillance teams across agencies in the future, allows multiple assets and capabilities to be tracked and visible together, allows the immediate and live streaming of surveillance footage to ANY member of the operation (whether in control rooms or deployed on the ground) and, introducing ‘e-logging’ in surveillance operations giving robust auditable records of deployments, briefings and imagery.”
The prior information notice (“PIN”)
On 29 September 2020 PDS commenced the tender exercise by publishing a prior information notice (“the PIN”) for the “Surveillance Operation Room Covert Procurement.” The PIN provided a short description of the nature and scope of the services as follows:
“The Police ICT Company intends to implement a 4 year Framework Agreement which allows police forces and other law enforcement agencies and public bodies to call off the services … A high level scope of the services the Supplier will deliver are as follows:
— a cloud based software application housing a suite of surveillance applications;
— facilitating interoperability (including legacy systems) and connectivity (including to other organisations) of surveillance operations;
— a scalable and agile solution; and
— appropriate security and restricted access to the services.”
The PIN included the following additional information:
“Due to the sensitive nature of these services being procured, the procurement documents will only be shared with economic operators who satisfy the following three requirements:
(a) Complete and return to the Police ICT Company a copy of the (Non-Disclosure Agreement) issued upon request to interested parties);
(b) Confirm and evidence that the recipient of the procurement documents holds at least NPPV3 security clearance; and
(c) Confirm and evidence that they have the necessary experience and expertise to deliver the services described in this Notice.”
On 5 October 2020, Excession responded to the PIN, expressing interest in participating in the tender process.
The selection questionnaire (“SQ”)
On 23 October 2020, PDS sent to Excession the Selection Questionnaire (“the SQ”) and related documents. The SQ stated:
“Purpose of this document:
The Authority is seeking Applicants who may wish to tender for the Contract to provide SOR services. The Police ICT Company will not be calling off any of the Services under the Framework itself and is undertaking the procurement on behalf of UK Policing and other contracting authorities.
The Organisations who can call-off from the Framework Agreement are as follows: any eligible Central Government Departments (and arm's length bodies) and all other UK Public Sector Bodies, including but not limited, to: Health, Police … Fire and Rescue … Home Office, Her Majesty's Revenue and Customs, Ministry of Defence, National Crime Agency, Police Scotland, Police Service of Northern Ireland and Devolved Administrations.
Given the nature of the SOR services, the procurement (as outlined in the PIN notice) is being run under the DSPCR 2011. Owing to the sensitive nature of the Requirements...
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Dukes Bailiffs Ltd v Breckland Council
...A similar result was reached by HHJ Keyser QC in Adferiad at p.139; and likewise, by O'Farrell J in Excession v Police Digital Service [2022] PTSR 859 at ps.152–164. Both HHJ Keyser QC and O'Farrell J held on the facts in those cases there was no basis for implying contract terms beyond con......