Mears Ltd v Leeds City Council
| Jurisdiction | England & Wales |
| Judge | THE HON. MR.JUSTICE RAMSEY |
| Judgment Date | 19 January 2011 |
| Neutral Citation | [2011] EWHC 40 (QB) |
| Docket Number | Case No: HQ10X03878 |
| Court | Queen's Bench Division |
[2011] EWHC 40 (QB)
The Hon. Mr.Justice Ramsey
Case No: HQ10X03878
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Parishil Patel (instructed by Trowers & Hamlins) for the Claimant
Andrew Arden QC & Christopher Baker (instructed by The Solicitor, Leeds City Council) for the Defendant
Hearing dates: 10 th December 2010
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 Hon. Mr. Justice Ramsey :
Introduction
These proceedings concern a public procurement by Leeds City Council ("LCC") known as the Leeds Housing Arms Length Management Organisation ("ALMO") Procurement 2011 ("the Procurement"). The Claimant ("Mears") was one of the tendering contractors in respect of lots 1 and 4 of the procurement which concern capital improvement and refurbishment works for social housing in the Leeds area.
In 2007 LCC set up three ALMOs to manage social housing and the Procurement relates to housing for two of those ALMOs: Aire Valley Homes Leeds Limited ("Aire Valley") and West North West Homes Leeds Limited ("West North West"). Mears was unsuccessful in its tender and made an application for an interim injunction to suspend the Procurement. At the hearing arranged to deal with that application Mears then made an application for disclosure of certain documents in the possession of LCC which, if disclosed, both parties accepted could have an impact on the application for the interim injunction. In addition LCC contended that certain of the allegations on which Mears relied in the underlying proceedings were time-barred under the provisions of Regulation 47 of the Public Contracts Regulations 2006 ("the Regulations").
In the circumstances it was agreed by the parties that the court should determine the application for disclosure and determine whether the allegations in paragraphs 20(1) and 20(2) of the Particulars of Claim were time-barred. Before turning to those issues it is necessary to set out some of the background to these proceedings.
Background
The Procurement was commenced on 21 October 2009 when LCC, through Aire Valley and West North West, published an OJEU Contract Notice which invited potential bidders to express their interest in participating in the Procurement. The Procurement involves contracts for two elements. First there is an element of capital improvement and refurbishment and responsive repairs and maintenance work to the housing and secondly there is the delivery of gas servicing repairs and maintenance works for the housing. These proceedings only concern the first element. The procurement was carried out under a competitive dialogue procedure pursuant to Regulation 18 of the Regulations.
An application for inclusion in the Procurement was to be made by potential tenderers completing a Pre-Qualification Questionnaire ("PQQ") and on 27 November 2009, Mears submitted a completed PQQ to LCC. There were 22 tenderers and LCC selected a shortlist of 9 tenderers, including Mears, to continue to the next stage, the invitation to participate in competitive dialogue ("ITPD") and on 29 January 2010 LCC informed those tenderers that they had pre-qualified.
On about 15 March 2010 LCC sent Mears the ITPD documentation in respect of the Procurement. The ITPD invited submission of "Outline Solutions Submissions (Quality and Cost)" in respect of the proposed works by 21 April 2010 but in response to requests from some tenderers, LCC extended the date until 5 May 2010.
Section 8 of the ITPD set out the evaluation criteria to be used in the selection of a maximum of three tenderers to be invited to the next stage, the invitation to continue dialogue ("ITCD"). There was then to be the last selection stage, the invitation to submit final tenders ("ISFT").
The evaluation of the ITPD was to be carried out on the basis of scoring of which 40% was for price for each lot and 60% for quality, the three highest scoring bidders being selected.
In respect of price, 100 marks were available for the lowest bid, with the other tenderers receiving a reduced score based on the difference in price as against the lowest tenderer. The pricing was to be submitted by completing a detailed spreadsheet issued by LCC containing a range of data and links between cells in the spreadsheet, to act as a common basis for the tenders.
In respect of quality, 100 marks were available for each of the lots distributed between eight criteria in varying, identified, weighted amounts. Under each of the criteria paragraph 8.2.1 of the ITPD identified questions to be answered by the tenderers. The questions under each criterion were not weighted as against one another.
During the evaluation period LCC reserved the right under paragraph 8.4 of ITPD to call for information from bidders to "clarify their bids to assist in its consideration and evaluation of the bid in question."
During the tender period LCC provided a number of changes to the pricing and qualitative aspects of the ITPD. Three amendments were made to the pricing sheets and one amendment to the "quality deliverable questions".
On 4 May 2010 Mears submitted its Outline Solutions Submissions in respect of the lots in the procurement. After the deadline had closed and after all tenderers had been received, LCC issued a clarification in respect of the Procurement by letter dated 14 May 2010 to all the tenderers. The letter stated
"We acknowledge receipt of your tender submission in relation to the above which is currently under evaluation. However we require that you take into account the following requirement and instructions with regard to pricing sheet number 1 (Rev 3)."
The spreadsheet contained eleven changes which the tenderers were required to take into account and they were to resubmit pricing sheet number 1 (Revision 3) by 4:00pm on 18 May 2010. By letter on 18 May 2010 Mears resubmitted its revised pricing sheet number 1 with its qualifications and alterations.
Further clarifications were issued relating to pricing by e-mails dated 17, 18 and 21 May 2010. The first two involved clarification of the changes issued on 14 May 2010. The last e-mail did not involve any changes.
On 2 July 2010 LCC informed Mears by e-mail that following the qualitative and quantitative evaluation undertaken of Mears's Outline Solution Submissions in relation to lots 1 and 4, capital improvements and refurbishment work, they had been unsuccessful in being short listed to progress to the ITCD stage. They were told that the results of the tendering exercise would be posted on the LCC web-based bulletin board once the successful contractor had commenced work.
On the same day, 2 July 2010, Mears sent LCC an email in which they sought feedback in respect of LCC's decision.
Between 15 July 2010 and 26 October 2010 LCC provided feedback on its decision. In particular LCC did so by a letter dated 1 September 2010 in response to letters dated 12 and 19 August 2010 from Trowers & Hamlin LLP, Mears' solicitors.
These Proceedings
On 12 October 2010 Mears issued these proceedings seeking an interim order suspending the Procurement and an order that LCC re-run the Procurement either entirely or from the ITPD stage.
On 2 November 2010 Mears served Particulars of Claim in which they alleged LCC was in breach of the Regulations in that they had failed to act with transparency and/or treat Mears equally and in a non-discriminatory way in that they had:
(1) Issued changes to the pricing aspects of the Outline Solutions Submissions after having received the tenders from the tenderers and whilst evaluating the same (paragraph 20of the Particulars of Claim).
(2) Provided an inadequate period of time for Mears to respond to the changes to the pricing aspects of the Outline Solutions Submissions made in the letter dated 14 May 2010 (paragraph 20of the Particulars of Claim).
(3) Evaluated the Outline Solution Submissions using undisclosed criteria and weightings, in particular:
(a) Using the Guidance which LCC attached to their letter dated 1 September 2010 pursuant to which a maximum score could only be achieved where the tender's response not only met LCC's requirements fully but exceeded them.
(b) On the basis that each sub-question under each section of the "Quality Deliverable Questions" carried the same weighting.
By paragraph 27 of the Defence served by LCC on 30 November 2010 they asserted that in relation to paragraphs 20(1) and 20(2) of the Particulars of Claim the proceedings had not been brought within the period of three months as required by regulation 47(7)(b) of the 2006 Regulation and there was no good reason for extending the period within the which the claim should have been brought, on the basis that any grounds for bringing the Claim in respect of the clarification of the 14 May 2010 first arose on 14 May 2010.
On 3 November 2010 Mears issued the application seeking an interim order that the Procurement in respect of lots 1 and 4, capital improvement and refurbishment work, be suspended until trial or further Order. The application was supported by a witness statement from Thomas Gregorek, a Senior Commercial Manager of Mears. The hearing of the application was fixed for 19 November 2010 but LCC sought an adjournment of that hearing.
On 12 November 2010 I ordered that the hearing of the Application should be adjourned to take place on 10 December 2010 and gave directions for LCC to disclose relevant documents and for LCC and Mears to serve evidence. LCC provided an undertaking not to take any further steps in the Procurement until...
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