Travis Perkins Trading Company Ltd v Caerphilly County Borough Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Akenhead |
| Judgment Date | 15 May 2014 |
| Neutral Citation | [2014] EWHC 1498 (TCC) |
| Docket Number | Case No: HT-13-282 |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 15 May 2014 |
[2014] EWHC 1498 (TCC)
Mr Justice Akenhead
Case No: HT-13-282
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Sarah Hannaford QC (instructed by Hogan Lovells) for the Claimant
Rhodri Williams QC (instructed by Morgan Cole LLP) for the Defendant
Hearing date: 8 May 2014
This is a public procurement case in which issues have arisen as to whether the Brief Details of Claim on the Claim Form issued by Travis Perkins Trading Company Ltd ("TPT") are apt to cover that which emerged in the Particulars of Claim served some 3 months later and if not whether the eventual claim pleaded is therefore time barred.
The Background
The following background is based on the evidence filed for these preliminary issues and is not intended to bind the final trial judge. Caerphilly County Borough Council ("the Council") initiated a competitive tender process for building materials supply, in November 2012. The Council indicated that it would use during the tender process an electronic system known as "Proactis Plaza e-Tendering". The anticipated Contract would be for ten years and was worth up to about £70m. The official Contract Notice in the Official Journal of the European Union had indicated that it reserved the right to request from the winning tenderer, as part of the contract conditions, a bond, parent company guarantee or other guarantees of financial liability at the time of the contract and during its term. The Invitation to tender ("ITT"), issued in February 2013, provided for this with Paragraphs 5.1.32 and 5.1.33 stating:
"5.1.32 Tenderers will be required to provide a Parent Company Guarantee ("PCG") from their ultimate parent or holding company (i.e. the entity at the top of their corporate group structure) in the form contained in Appendix 7 of these Tender Documents, except where the Tenderer has no parent company or is unable to provide a PCG in which case a Performance Bond will be required…
Tenderers capable of providing a PCG must submit with their tender a letter from the Parent Company on appropriately headed paper confirming that, if the Tenderer is successful, a PCG in the form contained in this ITT will be provided.
5.1.33 Where a Tenderer is unable to provide a PCG the Tender shall be accompanied by evidence in writing from a recognized insurance bank or bonding company ("Bondsman") (not agents) that, if the Tenderer is successful, a Performance Bond ["PB"] substantially in the form contained in Appendix 8 (with only such reasonable amendments as may be required by the Bondsman) will be made available within 28 days from the issue of the Notification of the Award. Failure to submit such evidence shall cause the Tender to be rejected…"
It seems that there were 6 tenderers, including TPT, Robert Price (Builders Merchants) Ltd, Social LandLord Supplies ("SLS"), Jasonic Ltd ("Jasonic") and "CSP". Tenders being due in by 4 April 2013, TPT submitted its tender on 3 April 2013, indicating that it would submit a PCG rather than a PB, stating:
"We will be prepared to consider entering in to a Parent Company guarantee in the event we are successful with our tender, subject to Travis Perkins plc [the parent company] Board approval."
It seems that, in respect of a number of the tenderers including TPT, the Council had some concerns as to whether they had done what Paragraph 5.1.32 and 5.1.33 of the ITT called for in relation to PCGs and PBs and it sought clarifications from such tenderers, including to TPT on 10 April 2013 saying that TPT had not submitted a proper form of PCG or PB. The Council warned TPT that failure to submit such a form by 9.00am the following day would result in the tender being automatically disqualified and that the bid would not be evaluated. There followed two telephone conversations between TPT and Council employees with the Council saying that it would not extend this deadline for submissions and that TPT was to communicate through the e-Portal to deal with clarifications. In response TPT sent two email messages, initially at 8.55am on 11 April 2013:
"Please find attached the PCG signed as requested from Travis Perkins Plc"
This email attached a blank copy of the pro forma guarantee (set out in Appendix 7 of the ITT) which named neither TPT's parent company nor TPT; the form did contain two signatures of unnamed individuals, who later turned out to be directors of the parent company. Shortly after the 9.00am deadline, TPT sent another email message at 9.12am stating:
"Please find attached completed PCG".
This enclosed a further executed copy of the PCG form on which appeared the TPT parent company name as guarantor and TPT as contractor.
The Council's Project Board met on 15 April to consider the remaining four tenders, TPT's having been excluded. The following day, TPT was informed by the Council that, because it had not provided the requisite documentation by the 9.00am deadline on 10 April 2013, its tender had not been considered. It is said that the following day that someone from TPT called the Council to admit that TPT had made a "schoolboy error".
On 18 April 2013, TPT wrote to the Council complaining that the decision to exclude its bid was "disproportionate, a breach of the obligation of transparency and potentially a breach of the requirement of equal treatment". This was on the basis that there was said to be unequal treatment of tenderers offering PCGs rather than PBs, that it was not given enough time to respond to the query on 10 April 2013 and that it was still prepared to provide a PCG; TPT asked for its tender to be considered by the Council. At a Board Meeting on 23 April 2013, the Council decided to maintain its previous stance and it wrote to TPT on 25 April 2013 explaining and justifying its decision. TPT's solicitors responded on 3 May 2013 to the effect that there were breaches of the regulations and other requirements in the request for a full parent company guarantee from TPT, the shortness of the timeframe to respond, the failure not to seek clarification on what was submitted and the exclusion of TPT's tender. This was challenged in detail by the Council's solicitors by letter of 9 May 2013.
Matters moved on and on 16 May 2013 TPT's solicitors requested from the Council under the Freedom of Information Act 2000 various items of information and documents about what had happened in relation to the other tenderers' PCG or PB submissions. This was responded to by the Council by letters dated 14 and 28 June 2013, the second of which enclosed actual documents sent to and received from other tenderers. This arguably suggested that there had been a fair amount of "coming and going" between at least three other tenderers and the Council about PCGs or PBs.
On 11 July 2013, TPT's solicitors wrote to the Council's solicitors raising the arguably different complaint that three other tenderers should have been excluded or, given that they were allowed to remain in the tendering process albeit with arguable deficiencies in their proposals for PCGs or PBs, TPT should have been allowed to remain in. They sought information and clarifications as to whether these other tenderers had been excluded and on various other matters. There being no effective response despite reminders, on 26 July 2013 TPT issued its Claim Form in these proceedings.
The "Brief Details of Claim" on the Claim Form are as follows:
"The Claimant's claim arises out of a procurement process by the Defendant for the award of a contract to become building materials supply partner pursuant to a Contract Notice published in the Official Journal of the EU on 22 November 2012 (ref. 2012/S 225–370683). The procurement was subject to the Public Contracts Regulations 2006 (as amended) (the " Regulations"). The Defendant notified the Claimant on 16th April 2013 that the Claimant was being excluded from the tender process because the information provided with the tender was incomplete.
The Defendant entered into the contract on or around 17 June 2013. On 27 June 2013, the Defendant, in response to a request made by the Claimant under the Freedom of Information Act, provided information which indicated that the Defendant received tenders from a number of other bidders which were incomplete. Despite repeated requests from the Claimant, the Defendant has failed to confirm whether these bidders have also been excluded from the procurement process.
The Claimant seeks a declaration that the Defendant was and is in breach of the Regulations, general EU and/or Treaty obligations and principles and/or implied tendering contract between the Claimant and the Defendant; and/or damages for breaches of the Regulations, general EU and/or Treaty obligations and principles and/or breach of an implied tender contract between the Claimant and the Defendant together with interest thereon and other appropriate relief."
On the same day, TPT's solicitors wrote to the TCC, copied to the Council's solicitors, requesting a stay to enable the Council to respond to the requests for information and to enable the parties to resolve matters. The accompanying stay application in the box on the form containing information on which they relied, wrote:
"… the Claimant requested further information from the [Council]…On 27 June 2013, the [Council] provided information to [TPT]…which indicated that the [Council] received tenders from a number of other bidders which were incomplete and, so far as [TPT] has been able to determine, did not exclude those bidders. From this information it appears that the [Council] has not treated bidders equally, in breach of the regulations, general EU and/or Treaty obligations and...
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