Riverside Truck Rental Limted v Lancashire County Council

Hearing date: 7 th April 2020

HH Judge Eyre QC:

Introduction .

The Claimant is engaged in the supply and maintenance of fleets of tractor cabs and trailers. Lancashire Renewables Ltd (“LRL”) is wholly owned by the Defendant and operates the Defendant's waste processing facilities. The Claimant currently supplies the cabs and trailers used by LRL in that task. The existing contract comes to an end in October 2020 and in September 2019 the Defendant commenced the procurement process in relation to a replacement contract for the provision of vehicles from October 2020.

The Claimant submitted a tender for the new contract but on 29 ^th November 2019 it was told that its tender had been rejected as failing to comply with the terms of the Invitation to Tender and that the Interested Party (“Monks”) was the successful tenderer.

In January 2020 the Claimant commenced two sets of proceedings. It issued in the Technology and Construction Court a claim alleging that the Defendant had broken its duty under the Public Contracts Regulations 2015 (“the Regulations”) and seeking a declaration and damages in respect of the alleged breaches (“the Procurement Claim”). At the same time it commenced proceedings in the Administrative Court seeking judicial review of the Defendant's decision to disqualify it from the procurement process (“the Judicial Review Claim”). The Claimant does not concede that either set of proceedings was commenced out of time but to guard against a conclusion that they were out of time it issued applications for extensions of time in both claims.

HH Judge Stephen Davies ordered that the Judicial Review Claim be transferred to the Technology and Construction Court and be tried with the Procurement Claim. The matter came before me for determination of the applications for extension of time. That hearing was conducted remotely by way of a Skype video hearing. It was not possible to broadcast that hearing in a public court and I directed that it be heard in private because that was necessary to secure the performance of justice. It had been hoped to conduct the oral permission hearing in respect of the Judicial Review Claim at the same time but the practicalities of conducting the remote hearing (in particular initial difficulties in connexion and the additional time taken by such a hearing as opposed to one conducted face to face) meant that was not possible.

Monks have chosen not to make any submissions in relation to the Claimant's application for an extension of time in respect of the Judicial Review Claim saying that the questions of whether the claim was issued in time or whether there should be an extension of time are outside their knowledge. However, Christopher Monk, a director of Monks, has provided a statement setting out the steps which Monks have taken and the expenditure they have incurred in preparing to undertake the contracted works. The Claimant takes issue with the necessity for and reasonableness of those steps.

The Parties' Dealings .

It is necessary to set out the history of the parties' dealings in some detail.

The Invitation to Tender was published on 19 ^th September 2019 and imposed a deadline of 29 ^th October 2019 for the return of tenders. The Invitation to Tender included as a “mandatory requirement” in the Tractor Unit Specification the provision that the Cab Type was to be a “Sleeper Cab” with “Single Bunk, standing height”. On 25 ^th September 2019 the Defendant issued a clarification which said as follows in respect of “Evaluation of Schedule 1 Part A – Tractor – Trailer Specifications”.

“Please note that Schedule 1 Part A will be scored on a pass/fail basis …If a Tenderer's Schedule 1 Part A is unacceptable and therefore fails for any of the criteria, their tender submission will be non-compliant and therefore disqualified….”

The Claimant's tender was submitted on 28 ^th October 2019 and provided for a cab with an interior height of 1,600mm (equivalent to approximately 5′ 3″).

On 29 ^th November 2019 the Defendant wrote to the Claimant (“the Rejection Decision”) saying that it had evaluated the tenders and had found the Claimant's tender to be non-compliant because the interior height of 1,600mm did not “constitute standing height”. The letter said that the Claimant's tender had been disqualified at that point as non-compliant. It went on to say that Monks had been the successful tenderer and that LRL would observe a ten-day standstill period until 9 ^th December 2019.

The Claimant wrote in response to the Rejection Decision on 2 ^nd December 2019. In that letter the Claimant criticised the “standing height” requirement as “a technicality that at best is ambiguous and open to interpretation”. It said that the price of the Claimant's tender would have been the same for a cab with a higher internal height. The letter concluded by saying:

“We are of the view that the ambiguity of internal cab height …does point to a legal challenge of the tender process…. I am formally requesting that [LRL] do evaluate our submission and consider our opinion that the cab height should have stated a minimum height. We will challenge this if our tender is not considered.”

The Defendant replied in a letter dated 6 ^th December 2019 saying that the evaluation of the Claimant's tender had been discontinued at the time it was found to be non-compliant. It went on to say that scores had, however, been allocated in the process leading up to disqualification. The letter proceeded to set out at some length the Defendant's position that the interior height set out in the Claimant's tender was not a standing height and that it had been entitled to disqualify the tender on that ground.

The Claimant sought an extension of the standstill period to 16 ^th December 2019 and the Defendant agreed to an extension but only until midnight on Thursday 12 ^th December 2019. On that day the Claimant wrote to the Defendant saying that the Claimant had “engaged counsel and will be submitting a claim form to the courts and subsequently the Particulars of Claim later in the week”.

On 16 ^th December 2019 the Claimant contacted Napthens LLP by telephone with a view to instructing that firm to provide advice and to act in the matter. That resulted in a short letter from Napthens to the Defendant on 16 ^th December 2019 simply saying that the former had been engaged to act for the Claimant. Instructions were taken and on 18 ^th December 2019 the Claimant's solicitors wrote a letter of claim. This set out again the Claimant's criticism of the “standing height” requirement. Under the sub-heading “Grounds for Judicial Review” the Claimant's solicitors said that the decision to exclude the Claimant from the tender process by reference to the height of the cab was “both irrational and procedurally unfair” and thereby susceptible to judicial review. The letter requested sundry items of information including whether Monks' tender was higher or lower than the Claimant's in price terms. The letter requested a reply by 13 ^th June 2020 (that was an obvious typing error for 13 ^th January 2020 and was corrected in a follow up letter on 3 ^rd January 2020) having said:

“You will doubtless be aware that our client had (sic) to issue its claim form pursuing a judicial review within 3 months of the date on which the grounds for the claim first arose meaning therefore the date is 28 ^th February 2020”.

Mr. Whittingslow of Napthens accepts that at the time he wrote that letter he was mistaken as to the relevant time limits.

The Defendant provided a detailed response by a letter of 10 ^th January 2020 explaining, inter alia, that the price tendered by Monks was £7,878,000 as opposed to the price of £6,991,000 from the Claimant. The scoring of the respective tenders has been disclosed showing the Claimant and Monks scoring at equivalent levels. The Claimant says that the effect of this is that if it had not been disqualified or if it had been given an opportunity to submit a tender for a cab with a greater interior height (which it says that it would have been able to provide at the same price as the cab with the 1,600mm interior height) then it would have obtained the contract as being the Most Economically Advantageous Tenderer. The Defendant does not accept that this follows making the point that if the requirement had been removed the other tenderers could also have submitted revised tenders which might have been at different prices from their existing tenders.

On 13 ^th January 2020 the Claimant's solicitors wrote attaching a draft of an application to extend time together with a supporting witness statement. The draft was of an application under CPR Pt 3.1(2) (a) to extend time for commencing judicial review proceedings. Napthens said that the application was being made because having considered the applicability of Regulation 92 of the Regulations they believed that the time limit for...