Resource (NI) v Northern Ireland Courts and Tribunals Service
| Jurisdiction | Northern Ireland |
| Judge | McCloskey J |
| Judgment Date | 28 November 2011 |
| Neutral Citation | [2011] NIQB 121 |
| Date | 28 November 2011 |
| Year | 2011 |
| Court | Queen's Bench Division (Northern Ireland) |
1
Neutral Citation No. [2011] NIQB 121 Ref:
McCL8360
Judgment: approved by the Court for handing down Delivered:
18/11/11
d
(subject to editorial corrections)*
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
______
QUEEN’S BENCH DIVISION [COMMERCIAL LIST]
________
BETWEEN:
RESOURCE (NI)
Plaintiff:
and
NORTHERN IRELAND COURTS AND
TRIBUNALS SERVICE
Defendant:
__________
McCLOSKEY J
I INTRODUCTION
[1] This challenge under the Public Contracts Regulations 2006 (as amended)
arises out of the latest chapter in the attempts to procure a new contract for the
provision of security and ancillary services for 23 courts throughout Northern
Ireland, representing the whole of the court estate in this jurisdiction. This is, self-
evidently, a major contract, generating substantial employment (in excess of 200 full-
time equivalent employees) and of importance to the population of Northern Ireland
as a whole. The protagonists are:
(a) Resource (NI) Limited (“Resource”), the Plaintiff, a bidder which
secured second place in the contract procurement competition.
(b) Northern Ireland Courts and Tribunals Service, (“NICTS”), the contract
procuring authority and Defendant
2
(c) G4SUK Limited (“G4S”), the successful bidder.
The first and second of these parties were legally represented at all stages of the
proceedings. By this challenge Resource impugns the decision of NICTS to award
the contract to G4S. The challenge is mounted on the grounds outlined in paragraph
[6] below and relief is sought accordingly.
II THE FRAMEWORK OF THE LITIGATION
[2] The context of the procurement exercise and this litigation is conveniently
illuminated in the following passage extracted from the NICTS “Information
Memorandum”, prepared for the assistance of interested bidders:
“The NICTS is responsible for providing security and
ancillary services in support of 25 locations across the
Province. Prior to 2001 these services were provided by an
in-house team supported by a police presence at each
courthouse. As part of the Criminal Justice Review
responsibility for security throughout the estate was
transferred to [NICTS]. In 2001 [NICTS] undertook a
procurement exercise to source a third party service provider
to cover security and ancillary services throughout the
estate. This procurement exercise appointed Maybin
Support Services as the single contracted provider”.
NICTS is a statutory entity, established by Section 69 of the Judicature (Northern
Ireland) Act 1978, which describes it as "a unified and distinct civil service of the Crown".
It is charged with the responsibility of facilitating the conduct of the business of the
Court of Judicature, County Courts, Magistrates' Courts and Coroners' Courts
throughout Northern Ireland. Its officers and other staff are appointed by the Lord
Chancellor and it is accountable to the Westminster Parliament through the
Department of Constitutional Affairs Parliamentary Secretary and the Lord
Chancellor. NICTS is now a statutory agency within the Department of Justice,
pursuant to the Transfer of Functions [NI] Order 2010 [SR No. 133].
[3] The recent history of the provision of the services in question can be gauged
from the judgment in this court in Federal Security Services –v- Northern Ireland
Court Service and Resource (NI) Limited [2009] NIQB 15, paragraphs [6] – [7]
particularly. While Maybin secured the relevant contract following the 2001
procurement exercise and there has been no subsequent completed exercise of this
kind, the Plaintiff in the present proceedings, Resource, is Maybin’s successor. The
mechanics and details of this succession are immaterial for present purposes. It
would appear that, making due allowance for the maximum permitted contractual
extensions, the contract was scheduled to expire in November 2006. This stimulated
the first competition designed to generate the award of a new contract, giving rise to
the Federal Security Services litigation. Following the court’s decision in Federal
Security Services, a new contract procurement exercise was conducted by and on
3
behalf of NICTS, culminating in the contract award decision giving rise to the
present challenge. In the events which have occurred, it appears that the
Maybin/Resource contract has been the subject of successive extensions.
[4] The other agency of which mention should be made is the Central
Procurement Division (“CPD”) of the Department for Finance and Personnel. It is
apparent from the evidence that CPD routinely provides procurement services to
public authorities such as NICTS. It seems uncontroversial to describe these services
as of a specialised advisory and supervisory nature. The evidence establishes that
CPD was involved in the instant procurement exercise from an early stage.
According to the NICTS witness (Mr. Radcliffe), the role of CPD was “… to make sure
the process was run properly, to ensure we applied the marking criteria … to gather the final
marking frames and comments …”. While it is clear from all the evidence that this is an
incomplete description of the CPD role, it nevertheless provides a flavour of the
substance thereof. The services provided by CPD included the attendance of two
representatives at Evaluation Panel meetings, including a crucial meeting on 13th
April 2011. This represented virtually the last crucial event in the procurement
exercise. By this stage, the “Pre-Qualification Questionnaire” phase had been
completed, giving rise to an invitation by NICTS to five economic operators,
including Resource, to submit tenders. This was duly achieved by the relevant
deadline, 5th April 2011. The impugned decision, signalling an intention to award
the contract to G4S, was published on 22nd April 2011. The competition between the
Plaintiff and G4S was plainly very close in nature. This is graphically illustrated by
the undisputed fact that if the G4S score for the sub-criterion of cash collection [a
prominent feature in the Resource challenge – infra], which was 5/5, had been less
than 4/5, the Resource tender would have been successful.
[5] The outcome of the procurement exercise was notified by CPD to Resource by
letter dated 22nd April 2011, which stated, inter alia:
“Our evaluation resulted in your tender receiving a score of
98.909% compared with the winning tenderer who scored
100%. Your tender was ranked second out of five.
Attached to this letter are the allocated scores and comments
of the Evaluation Panel.
The corresponding letter from CPD to G4S, also dated 22nd April 2011, stated, inter
alia:
“Central Procurement Directorate on Behalf of Northern
Ireland Courts and Tribunals Service is pleased to advise
you that it intends to award G4S Security Services (UK)
Limited the above contract subject to final business case
approval which is anticipated to be received by the end of
May/early June 2011 …
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