NATS (Services) Ltd v Gatwick Airport Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Akenhead |
| Judgment Date | 12 November 2014 |
| Neutral Citation | [2014] EWHC 3728 (TCC) |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Docket Number | Case No: HT-14-281 |
| Date | 12 November 2014 |
[2014] EWHC 3728 (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-14-281
Sarah Hannaford QC, Calum Lamont and Matthew Finn (instructed by Hogan Lovells International LLP) for the Claimant
Michael Bowsher QC, Rob Williams and Daisy Mackersie (instructed by Freshfield Bruckhaus Deringer) for the Defendant
Philip Moser QC (instructed by Simmons & Simmons LLP) for an Interested Party (DFS Deutsche Flugsicherung GMBH)
Hearing dates: 24 October and 3 November 2014
There are three applications before the court in these public procurement proceedings which relate to the tendering process for air navigation services at Gatwick Airport. NATS (Services) Ltd ("NATS") is the incumbent provider of such services but towards the end of 2013 Gatwick Airport Ltd ("GAL") instituted a tendering procurement in which both NATS and DFS Deutsche Flugsicherung GMBH ("DFS") participated and which led to DFS becoming the selected tenderer. Proceedings having been commenced, with the statutory or equivalent suspension preventing the placing of the contract with DFS and with the trial on liability due to start in about four weeks time, NATS seeks by way of two applications permission to re-amend its Particulars of Claim and to secure disclosure of various already disclosed documents to two in-house people who currently are not permitted by way of confidentiality arrangements to see them. GAL seeks to strike out various parts of the Amended Particulars of Claim and opposes a number of the proposed re-amendments.
Introduction
I adopt the summary of background facts set out by Mr Justice Ramsey in NATS (Services) Ltd v Gatwick Airport Ltd & Anor [2014] EWHC 3133 (TCC):
"GAL published its intention to carry out the Procurement in the Official Journal of the European Union ("OJEU") on 2 October 2013. The tender was divided into two lots. Lot 1 related to air navigation services, including provision of staff for those services and Lot 2 related to maintenance and repair of equipment. The Procurement proceeded by way of Invitation to Tender ("ITT"), a negotiation phase and then the submission of best and final offers ("BAFO").
6. NATS submitted its BAFO for Lots 1 and 2 on 2 June 2014. By letter dated 18 July 2014 GAL notified NATS that its tender had been unsuccessful and that DFS had been successful. In the correspondence that followed NATS sought further information and GAL contended that it did not come within the Regulations.
7. On 18 August 2014 GAL wrote to NATS to give them 7 days' notice that GAL intended to enter into the contract with DFS. NATS therefore issued proceedings and an application for a declaration that there was an automatic suspension under Regulation 45G of the Regulations, alternatively an interim injunction. Particulars of Claim were served on 28 August 2014. On 3 September 2014 NATS issued an application for disclosure. Also on 3 September 2014 GAL issued an Application seeking to lift any automatic suspension, alternatively if the suspension remained in place, an undertaking in damages by NATS.
8. After a hearing relating to disclosure on 5 September 2014 the application for disclosure was adjourned until early October 2014. The other applications were then heard on 10 and 12 September 2014."
At that hearing, Mr Justice Ramsey decided that there was a serious issue to be tried in relation to whether the Utilities Contracts Regulations 2006 as amended applied to the procurement and as to whether, even if they did not, an implied contract would have a comparable effect. Having considered whether damages would be an adequate remedy and the balance of convenience, he decided in effect that the statutory or equivalent suspension should continue until further order. Steps have been taken to fix a trial over two weeks at the beginning of December 2014, although there remains a discussion to be had as to how long the trial will be.
I will address first GAL's application to strike out parts of the Amended Particulars of Claim together with NATS' application to re-amend its Particulars of Claim, given that at least some of the re-amendments are proffered to overcome alleged deficiencies in the earlier pleading. I will then go on to consider the specific disclosure application.
Strike-out and Re-amendment
Permission to amend the Particulars of Claim was given formally by Mr Justice Ramsey on 10 October 2014, although a draft had been provided 10 days before. An Amended Defence had been served in fact several days before. NATS served its Reply dated 17 October 2014. The original Particulars of Claim were served on 28 August 2014.
On 23 October 2014, GAL issued its application to strike out two parts at Paragraph 16 (f) of the Amended Particulars of Claim and the whole of Paragraph 17. That was supported by a statement on the face of the application supported by a Statement of Truth. A witness statement in response dated 30 October 2014 was filed. On 28 October 2014, NATS filed its application to re-amend the Particulars of Claim supported by a statement on the face of the application, that being responded to in part of the least by a witness statement dated 30 October 2014 from Elizabeth Townsend, the Head of Procurement at GAL. A full day's argument ensued on 3 November 2014. The draft Re-amended Particulars of Claim, apart from a number of re-amendments which are not challenged, seek substantially to re-amend Paragraphs 16(f) and 17 and to add a new Paragraph 16(h).
It is necessary to summarise the Particulars of Claim and to set out the amendments which are objected to. Paragraphs 3 to 12 address the background history which included the fact that the procurement was related to two Lots, Lot 1 for air navigation services and the provision of operators and Lot 2 for the provision of asset management services. The marketing of the tenders would be 20% for past performance and capability, 30% for requirement compliance, 20% for transition process and service sustainment and 30% for price assessed over five years, with requirement compliance to be marked 7.5 for good, 5 for acceptable, 2.5 for limited value and 0 for no utility. Initial tenders were to be provided followed by a negotiation phase and submission by tenderers of Best and Final Offers ("BAFOs"). Paragraph 13 pleaded duties based on the Utilities Contracts Regulations 2006 whilst Paragraph 14 relied upon an implied tender contract which "required [GAL] to comply with the Regulations, alternatively to treat the Claimant fairly and equally, in a non-discriminatory way, proportionately and transparently, and/or to evaluate the tenders in accordance with the tender documents and/or to make award decisions for the Lots on the basis of the most economically advantageous tenders submitted."
Paragraph 16 of the draft Re-amended Particulars of Claim pleads breaches of obligations "including the principles of equal treatment, transparency, non-discrimination, proportionality and/or good administration" going on that GAL further or alternatively "acted in manifest error" as follows in the ensuing sub-paragraphs. A major complaint in Paragraph 16(a) is that GAL is said not to have evaluated Lots 1 and 2 separately such that it would or should have won Lot 1 or alternatively Lot 2 if separately assessed. Paragraphs 16(f) and (h) and 17 with the re-amendments underlined and the amendments in italics (and items asterisked in the Confidential Appendix to this judgment) were as follows:
"(f) Further, the Claimant avers that the quality scores awarded to it were manifestly wrong. The Defendant has admitted by letter dated 30 July 2014 that the Claimant's score should have been increased by a maximum of 0.9%. The Claimant avers that, even taking this into account, its score remains too low in manifest error, as more fully particularised in Schedule 1 hereto. Further, the Defendant has failed to provide any adequate justification for the scores awarded to DFS and the Claimant avers (on the basis of the limited information available to it at this stage) that the scores awarded to DFS the for quality are also likely to have been manifestly wrong. Without prejudice to the generality of the foregoing, on the basis of the evidence served by the Defendant for a hearing on 10 September 2014, the Claimant avers that DFS was over-scored for its Transition Plan (for which it obtain full marks the both Lots 1 and 2) in circumstances in which (i) it was apparently unable to transition in the required 12 month period; (iii) it needed 12–15 months to transition; (iii) it could not offer a seamless transition whilst maintaining capacity; and/or (iv) it envisaged (as a conservative estimate) a likely capacity reduction of 5% over a 2–4 week period after the end of the transition period and/or, as is apparent from the documents and/or information disclosed by the Defendant on 15 and/or 20 October 2014, (v) DFS' transition plan(s) and/or proposals were considered by the Defendant to be insufficiently robust and/or required to be "de-risked" and/or "deferred" and/or otherwise modified and/or revised in the period after "normalisation" of the technical scores and after submission of BAFOs in order to be acceptable to the Defendant. The Claimant reserves its right further to particularise this allegation on disclosure of relevant documentation.
(h) Further, it is apparent from the documents and/or information disclosed by the Defendant on 15 and/or 20 October 2014 that the decision to award the contract to DFS was not made and/or was not made solely on the basis of the award criteria in the tender documents, but rather took into consideration other unlawful factors,...
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