R (Gamesa Energy UK Ltd) v the National Assembly for Wales
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE GIBBS |
| Judgment Date | 04 August 2006 |
| Neutral Citation | [2006] EWHC 2167 (Admin) |
| Docket Number | CO/4278/2006 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 04 August 2006 |
[2006] EWHC 2167 (Admin)
Mr Justice Gibbs
CO/4278/2006
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
MR JOHN HOWELL QC AND MR JAUAN HERBERG (instructed by DLA Piper Rudnick) appeared on behalf of the CLAIMANT
MR CLIVE LEWIS (instructed by Geldards) appeared on behalf of the DEFENDANT
For reasons known to all parties in this case, it is urgent that the hearing be concluded and the outcome known. It has been listed as vacation business and I am grateful to both counsel for compressing their submissions to enable the matter to be finished within the time allotted without in any way reducing their vigour and effectiveness.
The claim for judicial review brought by Gamesa Energy UK Limited against the National Assembly for Wales and the Forestry Commissioners relates to the first stage of a tendering process operated by the second defendant, the Commissioners, for the award of seven options to lease forestry land owned by the first defendant. The purpose of the proposed options is to enable wind farms to be developed within the forest. The case has been listed for a permission hearing followed by a substantive hearing if leave is given. I decided to have a full hearing on the merits in relation to all matters before making any decisions.
At the first or pre-qualification stage of the tendering process the Commissioners made choices which excluded the consortium of which the claimant is a member from amongst those who would be invited to bid for each of the options. It did so on the basis of its pre-qualification questionnaire ("PQQ"). Accordingly, the claimant was not to be one of the nine bidders selected to participate in the second stage and receive an invitation to tender for the projects themselves. The nine bidders chosen were subsequently increased to ten following the discovery of a mathematical error in relation to an initially unsuccessful bidder. Nothing turns on that.
The claimant was told of the decision on 24th February 2006. There was a period during which it sought further information and feedback about the basis for its exclusion. Then, on 23rd May 2006, the claimant brought these proceedings. In summary the claimant contends that the decisions of the defendants were flawed, irrational and unfair, and/or were taken in breach of a legitimate expectation held by the claimant about the way in which the Assembly's statutory functions would be discharged in disposing of the land and about the arrangements for so doing. The claimant brings the proceedings on four grounds. The first three grounds attack aspects of the assessment process as it was applied to the claimant's bid as contained in the pre-qualification questionnaire. The fourth ground relates to the way in which the tendering process was divided into two stages, or tiers, and how that operated in practice.
The allegation of irrationality is crucial to the outcome of this claim. It is submitted that there was no rational or intelligible justification for certain aspects of the marking scheme applied to the PQQ. It is said that those aspects of the marking scheme penalised the claimant. It penalised the claimant, in particular, for disclosing too many developments which it had conducted in the past and for giving details of projects which were in a relatively early stage of development. The claimant contends that it would or might have received higher marks had there been no irrationality and that such higher marks might well have brought it within the category of those who progressed to the second stage.
The justification given for the challenged system by the defendants is broadly that the defendants were lawfully entitled to choose such a system. It was fairly and equally applied to all potential bidders. It was designed to identify those whose approach to the pre-qualification questionnaire indicated by their selection of past development projects an awareness of the specific needs of the current project.
The claimant is a UK limited company with its headquarters in Newport, Wales. It is a wholly owned subsidiary of a Spanish company Gamesa Energia SA ("GESA"). Both companies form part of the Gamesa group of companies which includes a company which is a major manufacturer of wind turbines. The group itself is a very substantial developer of wind farms worldwide. Gamesa UK and GESA are the two members of the consortium which participated in the tendering process, the subject of this claim.
The first defendant, the Assembly, is a statutory body to whom certain powers are granted, including the power to place any land acquired for forestry purposes at the disposal of the Commissioners, the second defendant. The Commissioners have no power in themselves to dispose of land, but the Assembly have the power to dispose of land for any purpose, to let land, or to grant any interest or right in or over it.
However there is authorisation by statute for the first defendant to make arrangements with the second defendant for the latter to discharge the former's functions in that regard. At the same time the Assembly remains responsible in law for the arrangements in question. Public money and public assets are involved, therefore the Assembly has a duty to achieve best reasonable value for money consistent with achieving any proper purpose for which it decides to dispose of land.
Moving to the specifics of this case. The first defendant has a target for the generation of 800 mega watts of electricity from on-shore wind farms in Wales by the year 2010. For that purpose the first defendant caused a document to be produced (known as a technical advice note), identifying seven strategic search areas (or "SSAs") as potential locations within which wind farms might be situated. All of those areas contain forests or woodlands owned by the first defendant.
In or about September of 2005 the defendants agreed that the second defendants should exercise the first defendant's functions in disposing of forestry land, among other things for the development of renewable energy. Under those arrangements any proposal for disposal of land for construction of a wind farm required the prior written approval of the Assembly.
The second defendants adopted a National Forest Estate Wind Farm Programme to help meet the Assembly's target for wind power generation consistent with the policy set out in the document to which I have referred. That involved:
"procurement [which] will result the selection of a preferred organisation for each of the SSAs … [which] will be invited to sign a ten year option agreement with [the Assembly conferring] the sole right to plan wind farm developments and to apply for planning permission on Assembly owned land within [the SSA]. … Organisations who are able to meet the necessary planning permission requirements will subsequently be awarded a 25 year lease agreement."
The second defendants, having taken advice, decided to structure the procurement arrangements in two stages. The first stage was a pre-qualification stage, described as having the aim of:
"… enabling the Commission to short list a suitable number of bidders to ensure completion across all lots."
Those successful in that pre-qualification stage would receive an invitation to tender. The second stage was the selection of the preferred bidder for each of the seven SSAs on the basis of the most economically advantageous bid submitted in response to the invitations to tender.
In relation to the procedures to be adopted in that two-tier process the Assembly's procurement department originally advised the second defendants that OJEU procedures and the Assembly procurement procedures should be followed. OJEU stands for the Official Journal of the European Union. Those procedures are mandatory in relation to certain areas of public procurement.
It was thought, at the time that the advice was given, that the OJEU procedures were mandatory in relation to the present tendering process. Therefore the Commission agreed to follow such procedures. Later it was discovered that it was not legally necessary for those procedures to be adopted in the present tendering process, and on the evidence before me the Assembly agreed that those procedures need not strictly be followed. It should be said that the discussions about the procedures to be followed and whether they would or would not comply with OJEU took place between the first and second defendants and was not disclosed to the bidders, including the claimant; nor was there any obligation to disclose them.
On 10th September 2005 the second defendants advertised the tendering process, inviting expressions of interest and providing on the internet PQQs to be downloaded. The PQQ contained information about the process, as well as a questionnaire containing certain sections into which those interested in bidding had the opportunity to ask specific questions about the process. Those questions were collated.
On 20th January 2006 the questions which had been asked by potential applicants were published together with the answers. These included the following:
"11. Are the Commission able to confirm how many bidders they envisage short listing?
The [Commission] is not able to confirm at this stage how many bidders will be short listed for each Lot. Once the level of interest in each Lot has been established it is [the Commissioner's] intention to short list a suitable number of bidders to ensure...
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