Lettings International Ltd v London Borough of Newham
| Jurisdiction | England & Wales |
| Judge | Mr Justice Silber |
| Judgment Date | 07 July 2008 |
| Neutral Citation | [2008] EWHC 1583 (QB),[2008] EWHC 1009 (QB) |
| Docket Number | No. HQ07X04065,Case No: HQ/07X04065 |
| Court | Queen's Bench Division |
| Date | 07 July 2008 |
[2008] EWHC 1009 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Mr. Justice Mccombe
No. HQ07X04065
MR. J. COPPELL (instructed by Bowling & Co.) appeared on behalf of the Claimant
MR. R. ANDERSON QC and MS. E. HOLMES (instructed by Legal Services, London Borough of Newham) appeared on behalf of the Defendant
MS. D. ARTESI (instructed by Sternberg Reed) appeared on behalf of the 1 st Interveners
MR. D. GATTY (instructed by YVA Solicitors) appeared on behalf of the 2 nd Interveners.
(As Approved by the Judge)
In this action the claimant, Lettings International Limited, alleges that the defendant, the London Borough of Newham, acted in breach of the Public Contracts Regulations 2006 and in breach of contract in conducting a tender process for contracts for the procurement, management and maintenance of private sector leased accommodation, to be made available to the defendants for the discharge of its functions broadly under the Housing Acts.
The gist of the allegation is that the Council acted unfairly and without the requisite transparency in failing to disclose contract award criteria; made a number of errors when marking the tenders, and, in doing so, did not treat the claimant's tender fairly and objectively. Those heads of complaint are amplified in the particulars of claim in the action, in para.15 in the following broad headings:
“1. Failure to specify contract award criteria.
Failure to apply contract award criteria.
Failure to mark tenders fairly, reasonably and objectively”.
The claimant has the benefit of an injunction preventing the defendant from entering into contracts consequent upon the tendering process pending trial of the claim. The trial is scheduled for later this month, having been so ordered on a speedy trial basis. The application for the injunction went so far as the Court of Appeal late last year, when the claimant's claim, as I am informed, did not include the claim under head 3 that I have already mentioned.
The application before the court is made by the claimant for specific disclosure of successful tenders submitted to the defendant by four other contractors in the relevant field, Atlantic Lodge Limited; Fine Fair Consultancy Limited, Theori Investments Limited and Omega Lettings Limited.
Before me the claimant has been represented by Mr. Coppell of counsel and the defendant by Mr. Anderson QC and Ms. Holmes. The successful tenderers (whom I will call “the interveners”) applied to the court to make representations on the application, and they have been represented by Ms. Artesi and Mr. Gatty. Mr. Coppell, for the claimant, did not oppose my hearing argument from the interveners but put a marker down as to his potential opposition to any order for costs that might be made in their favour. As a result, I have heard helpful submissions from all interested parties.
The claimant's application only arises upon the third head of its claim, that is the allegation of unfair marking. Mr. Coppell submits that his client's tender was marked erroneously, unfairly and in a discriminatory manner when compared with the markings given to the interveners. He argues that without sight of the interveners' tenders it is impossible fairly to determine that issue. Further he says it is impossible to understand the significance of certain other documents already disclosed without sight of the disputed papers, to which reference is already made in those documents. He argues that the allegations made and the defences deployed by the defendant clearly indicate the relevance of the successful tender documents.
The material paragraphs of the particulars of claim is para.19(1) to (6) of the particulars, which read as follows:
“In breach of Regulations 34(3) of the EU Law principles of transparency and equal treatment, the defendant failed to mark the claimant's tender fairly, reasonably and objectively. Pending disclosure and independent analysis of the respective tenders, the claimant relies upon the following facts and matters:
(1) The claimant has successfully provided services to the defendant for some years which are the same as the services comprised in the contracts, yet it received relatively low marks for aspects of its business with which the defendant has been consistently satisfied in practice.
(2) The claimant received only 2 out of 5 marks for 'size' under 'Procurement of accommodation' which meant that its tender was 'unsatisfactory' in this respect, despite offering a firm commitment to procure accommodation of the size required by the defendant.
(3) The claimant received lower marks than each of the successful tenderers for 'ease of upkeep' and 'matching our needs' and 'a procurement of accommodation' has received no satisfactory explanation for the defendant's approach.
(4) The claimant received only 2 out of 5 marks for 'appropriate escalation routes for complaints'. In its letter dated 6 th December 2007 the defendant explained that this was because 'nothing was shown in your client's bid as to escalation through the company of contractual or other issues'. In fact the defendants had overlooked that the claimants had provided a complaints procedure with a three stage escalation route ending with managing director review. It was marked down for similar reasons under 'complaint handling'.
(5) Under 'resource allegation' the defendant failed to give any weight to the investment made by the claimant in retaining in-house teams of plumbers and heating engineers.
(6) The claimant received relatively low marks under 'management and monitoring' despite having ISO 9001 accreditation and providing the defendant with extensive evidence of that”.
As to those paragraphs, it is pleaded in para.19 of the defence as follows:
“The defendant denies paragraph 19 of the particulars of claim, except where specifically stated below. The claimant's tender, as with all other tenders it received, was marked fairly, reasonably and objectively. The claimant notes the matters set out in paragraphs 19(1) to (9) of the particulars of claim. None of the matters contained therein evidence any failure on the part of the defendant to mark the claimant's tender fairly, reasonably and objectively. Further, and without limiting the generality of the foregoing:
(1) The defendant disputes the relevance of paragraph 19(1) of the particulars of claim. The claimant has provided services to the defendant since 2001 pursuant to contracts which were the subject of the independent report referred to in paragraph 3 above. No account was taken in the marking process of any previous track record of the claimant or any other tenderer.
(2) The defendant admits paragraph 19(2) but says the assessment of the claimant's tender in this respect, as in every other, was fair, reasonable and non-discriminatory. The defendant would have expected, for example, the claimant's bid to include a commitment to providers to maximise the room size requirements in negotiating with the landlords.
(3) As to paragraph 19(3) the defendant admits that the claimant received lower marks than each of the successful tenderers for 'ease of upkeep' and 'matching our needs'. The claimant however provides no basis on which a court could conclude that this was a result of the defendant's alleged failure to apply the regulations or general EU legal principles. Without prejudice to any other matters which the defendant will raise at trial, the defendant would have, for example, expected to see a commitment to preferring risk free properties.
(4) The defendant admits the first and second sentences of paragraph 19(4). The defendant denies, however, it overlooked the complaints procedures put forward by the claimant. The claimant's tender was marked down in this respect because the complaints procedure referred to appeared to be designed to deal with complaints from clients and, in any event, its escalation was limited in that all complaints were ultimately decided upon in-house. Further, the claimant's submission made no mention of how the mechanics would be managed of the relationship with the defendant.
(5) The claimant admits paragraph 19(5) of the particulars of claim, and says that this is because the matters referred to therein were matters considered at the selection stage. None of the matters considered at the selection stage were considered again at the tender evaluation stage of the process.
(6) In relation to paragraph 19(6) the defendant admits that the claimant received relatively low marks under 'management and monitoring' in that the claimants had ISO 9001 accreditation. As it was a requirement of the pre–qualifying stage to have quality accreditation, however, no particular account was taken of this at the tender evaluation stage. Paragraph 19(6) is otherwise denied”.
Mr. Coppell argues that it is clear from those paragraphs that the defendant's contention that all tenders were marked fairly can only be verified by sight of the successful tender documents. He submits that reference to certain specific matters which were absent from the claimant's tender, as mentioned in the defence, requires the court to see what was said in the other tenders about those matters. His argument is that the whole thrust of the defendant's case is that all the tenders were treated by reference to the same consistent criteria and that that assertion cannot be judged without reference to the documents now sought. Mr. Coppell acknowledges the confidentiality of the documents in question, but submits that suitable safeguards can be put in place...
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