Geodesign Barriers Ltd v The Environment Agency
| Jurisdiction | England & Wales |
| Judge | The Hon. Mr Justice Coulson |
| Judgment Date | 29 April 2015 |
| Neutral Citation | [2015] EWHC 1121 (TCC) |
| Docket Number | Case No: HT-2015-000027 |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 29 April 2015 |
[2015] EWHC 1121 (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-2015-000027
Ms Sarah Hannaford QC and Mr Simon Taylor (instructed by Wright Hassall LLP) for the Claimant
Mr David Gollancz and Mr Paul Bury (instructed by Environment Agency Legal Services) for the Defendant
Hearing date: 16 April 2015
THE APPLICATIONS
This is a procurement dispute. Pursuant to an application dated 20 March 2015, the claimant seeks orders for specific disclosure of documents; an answer to its request for the identities of the four other unsuccessful tenderers whose bids were rated higher than their own; and permission to amend its particulars of claim following the provision of the specific disclosure sought and the relevant information. All these applications are opposed.
There were also applications by the defendant to lift the automatic suspension pursuant to Regulation 47H and by the defendant to strike out the claimant's claim. Happily, those matters have been resolved by agreement. Accordingly, the parties are agreed that the suspension should be lifted, which has the effect that the claimant's claim in these proceedings is for damages only. The defendant has withdrawn the application to strike out. The consequence of that is that the court is entitled to assume that the claimant has raised at least a prima facie case.
I propose to set out briefly the factual background ( Section 2), before going on to address the pleaded claim and the issues that arise ( Section 3). Having summarised the law in Section 4, I then consider the documents that have so far been supplied by the defendant, and the documents which they say do not exist ( Section 5 below). Thereafter I deal in Section 6 with the application for specific disclosure; in Section 7 with the application for further information relating to the identities of the unsuccessful tenderers; and in Section 8 with the application in respect of amendments. There is a discrete point as to the membership of the confidentiality ring, which I deal with in Section 9 below. At the end of the hearing, because more than the full three hours had already elapsed, I indicated those parts of the applications I would grant, and those I would refuse, together with brief reasons. As promised, this Judgment contains my detailed reasons for my decision.
THE FACTUAL BACKGROUND
The defendant is a contracting authority and its procurement for temporary flood barriers systems was subject to the Public Contracts Regulations 2006. The tender process took place between October and December 2014.
The Invitation to Tender ("ITT") stated that there were two stages to the evaluation process. The first stage was the verification of compliance with the mandatory performance specification; and the second stage was the scoring and ranking of the tenders. There were two elements to this second stage: the price, and a quality evaluation by reference to certain technical considerations. The price/quality split was 60/40. The quality criteria, which numbered six in total, each had a percentage weighting.
By emails at the end of December 2014, the claimant was notified that it had been unsuccessful. The successful bidder was Inero AB ("Inero"). The claimant, who was the incumbent provider of this service to the defendant, made immediate complaints about the tender process. In particular, the claimant complained that the Inero system did not comply with the mandatory performance specification.
The information subsequently provided to the claimant indicates that the scores awarded to the claimant in respect of the second stage technical considerations were precisely the same as those awarded to Inero. The claimant therefore lost on price; indeed, the defendant has said expressly that, by reason of price, the claimant's bid was ranked sixth overall. This means that, in addition to Inero, there were four other tenderers (who have been referred to as A, B, C and D) whose bids scored more highly than that of the claimant.
The claim form was issued and served on 26 January 2015. Detailed particulars of claim were provided on 5 February 2015. The defence was served on 4 March 2015 and the reply on 30 March 2015. It is necessary to analyse the pleaded claims and the issues arising out of the pleadings in a little more detail.
THE PLEADED CLAIM AND THE ISSUES ARISING
Paragraph 14 of the particulars of claim sets out the detailed criticisms of the defendant's bid evaluation process. Sub-paragraphs 14(1), (2), (3) and (4) are all allegations concerning what are said to be flaws in the defendant's evaluation of the Inero bid. Furthermore, these allegations are very specific: they mainly go to the claimant's principal complaint that the Inero bid did not comply with the defendant's mandatory performance specification (i.e. the first stage of the tender evaluation process).
Paragraph 14(5) is a summary paragraph:
"(5) In the premises, it is averred that:
(a) The tender process and evaluation conducted by the Defendant was fundamentally flawed.
(b) The Inero solution should have been disqualified on the basis that it was non-compliant with the mandatory specification.
(c) Further, or in the alternative, the price and quality scores allocated to Inero failed to take into account the deficiencies and whole life costs of its solution.
(d) The award of the contract to Inero and the deployment of its untested flood defence system by the Defendant could create significant safety risks for English persons and property in flood areas. It is averred that a breach in a flood defence barriers unleashes forces which cause far greater risks than gradual floodwater damage, including potential loss of life.
(e) In the absence of any other higher bids which are genuinely compliant with the specification, the Claimant should have been awarded the Contract and/or the tender and/or evaluation process should be rerun."
In my view, on a proper reading, this sub-paragraph does not extend the nature of the claimant's complaints beyond the points made in the preceding sub-paragraphs, which all concern the evaluation of the Inero bid and, primarily, the defendant's failure to appreciate the non-compliant nature of the Inero design/specification.
The defence responds on all of these matters in some detail. Furthermore, at paragraph 15 of the defence, is a table intended to make good the point that the claimant, with an overall mark of 70.9, was ranked sixth out of the eight tenders which were said to be compliant. But at paragraph 17, by reference to these other tenders, a different point is taken as to causation. The defendant avers:
"If the Defendant had disqualified Inero or marked Inero's tender unfavourably, as the claimant contends the Defendant should have done, it would have made no difference to the outcome for the claimants. At most, if Inero had been disqualified, the claimant's tender might have been placed fifth rather than sixth out of the complaint tenders. It follows that the claimant had no chance of winning the contract and has not suffered or risked suffering any loss consequent on the breaches alleged in its Particulars of Claim, which relate exclusively to the evaluation of Inero's tender."
In the reply, this paragraph is put in issue and wider criticisms are made of the defendant's evaluation process. The reply avers that an inference should be drawn that, so flawed was the defendant's evaluation process, all of the allegedly compliant bids (other than the claimant's own bid) did not in fact comply with the mandatory performance specification.
Although I accept that the claimant has demonstrated a prima facie case, it struck me on reading the papers prior to the hearing that this was not a claim which could be described as particularly strong. First, as demonstrated by my summary of the pleadings above, the pleaded criticisms of the defendant's process focus entirely on the Inero bid.
Secondly, the claimant's case amounts to a submission that the defendant has made a manifest error in accepting Inero's detailed design, without realising that this design did not comply with their own performance specification. That seems to me to be a relatively high hurdle for the claimant to overcome. It is not that different to the claim advanced in Group M UK Ltd v Cabinet Office [2014] EWHC 3659 (TCC), which, on the application for an injunction, Akenhead J said was so unlikely to succeed that he found that it did not even raise a serious issue to be tried. This adverse impression is no more than a matter of common sense: just how likely is it that the defendant, with all its experience and technical expertise, would accept a tender that did not comply with its own mandatory performance specification?
Thirdly, the causation point raised by the defendant means that, even if permission was subsequently granted to amend the Particulars of Claim, the claimant would have to show that, in addition to the Inero bid, the other four bids A, B, C and D were also non-compliant, or should have been rejected for other reasons. That is, on any view, a tall order.
I had therefore expected the defendant to be able to demonstrate, in fairly short order, that its tender evaluation had considered, at least in general terms, the technical points now put in issue by the claimant, and how and why it had concluded that Inero's tender was compliant. However, as we shall see, the defendant's tender evaluation material is most unsatisfactory.
THE LAW
CPR 31.12 provides:
" Specific disclosure or inspection
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