Turning Point Limted v Norfolk County Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Akenhead |
| Judgment Date | 26 July 2012 |
| Neutral Citation | [2012] EWHC 2121 (TCC) |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Docket Number | Case No: HT-12104 |
| Date | 26 July 2012 |
[2012] EWHC 2121 (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-12104
Rhodri Williams QC (instructed by Anthony Collins LLP) for the Claimant
Elisa Holmes (instructed by nplaw) for the Defendant
Hearing date: 20 July 2012
This is a public procurement case and raises interesting issues about limitation in procurement cases as well as the acceptability (or not) of what may be termed qualifications or caveats to tenders in public procurement. The case relates to a public procurement process conducted by the Norfolk County Council ("the Council") in relation to various drug and alcohol treatment services.
The Facts
The members of the Norfolk Drug and Alcohol Partnership decided that they wished to let a single contract for an Adult Drug and Alcohol Treatment system. The Council was to conduct the procurement exercise and to be the contracting authority on behalf of this partnership. On 15 September 2011, the Council published a Contract Notice in the Official Journal of the European Union. It was at least superficially to be on a "restricted" basis and there was to be a two-stage procurement process, the first of which was to be a prequalification stage.
From 19 September 2011, the Council made a Pre-Qualification Questionnaire (the "PQQ") available to potential applicants in relation to this procurement, including the Claimant, Turning Point Ltd ("Turning Point"), a well-known health and social care social enterprise which is registered as a charity and which provides services for people with complex needs, substance misuse, mental health problems and learning disabilities. Turning Point is a substantial organisation providing services at over 200 locations with some 2000 staff and an annual turnover of about £80 million. The Council's proposed procurement was for a contract which would be for five years together with a discretionary additional two years.
The PQQ provided a substantial amount of information to applicants and an "Important legal notice" which stated materially:
"1.…[the Council] does not make any binding commitment to actual or potential applicants ("Applicants")…about its conduct of this procurement exercise, other than to abide by its statutory obligations and the express terms of this important Legal Notice. No other obligation on the Council shall be implied into any contract which may arise between the Council and any applicant governing the conduct of this exercise.
2. Any Applicant who participates in this procurement exercise shall be deemed to accept the above condition and the conditions set out below. These conditions constitute the entire agreement between the parties concerning the conduct of the tender exercise."
The PQQ also addressed the fact that the Transfer of Undertaking (Protection of Employment) Regulations 2006 ("TUPE") would be relevant because staff from other organisations currently engaged on the work to which the proposed tender related would or could be transferred to the successful tenderer. Material parts of this section of the PQQ were:
"3. [The Council] believes that TUPE will apply to this procurement. Applicants should note that the staff concerned includes staff eligible for the Local Government Pension scheme and the NHS Pension Scheme…
5. Applicants should take into account the following requirements…
(d) The transfer to any successful Tenderer from the current employer of all liabilities in respect of claims for (but not limited to) the following-claims for redundancy payments…
6. The issues raised in paragraph 5 are a non-exhaustive list of the primary issues to be considered. In the event of a bid being successful, the successful Tenderer will be expected to fully comply with the TUPE Regulations. Further details of staff transferring will be provided to the successful bidder by the current employer.
7. The Council is not the sole employer of the staff who may transfer and is dependent on the existing contractors for the provision of information concerning such staff. The Council and the existing contractors make no warranties or representations and give no undertakings as to the accuracy, completeness or sufficiency of any information relating to the employees of the Council and the existing contractors provided during the procurement process…
9. Many employees of the Council and the existing contractors are members of public sector pension schemes and will have a right, in addition to the rights conferred by the TUPE Regulations, to membership of a broadly comparable pension scheme which will need to be provided by their new employer."
Turning Point successfully pre-qualified having submitted its completed PPQ on 18 November 2011. It signed a confidentiality agreement in anticipation of pre-qualifying. On 19 December 2011, the Council invited Turning Point amongst others to tender for the project, sending the Invitation to Tender ("the ITT"). The ITT also contained an "Important legal notice" which at Paragraph 2 contained the same clause as contained in Paragraph 1 of the PQQ. Material parts of this part of the ITT are:
"4. Information supplied by the Council is subject to constant updating and amendment in the future and is necessarily selective and is supplied for general guidance in the preparation of tenders. It does not purport to contain all the information which Tenderers may require and Tenderers must satisfy themselves by their own investigations about the accuracy of such information. While the Council has taken all reasonable steps to ensure, as at the date of this document, that the facts which are contained in this invitation to Tender are true and accurate in all material respects, the Council does not make any representation or warranty as to the accuracy or completeness of this invitation to Tender, or the reasonableness of any assumptions on which this document may be based…
9. The Council may exclude from consideration any tender which is not submitted in full compliance with the instructions contained within this ITT and shall be under no obligation to consider any extenuating circumstances which may have arisen. The Council's decision as to whether any ITT submitted complies with the instructions shall be final…
19. All responses and submissions provided by the Tenderer will form part of the contract should the Tenderer subsequently be successful…"
Part of the ITT was entitled "Key information":
| "Validity of offers | 180 days from tender submission date… |
| Conditions of Contract | The Contract will be subject to the attached terms and conditions. No qualifications to these terms and conditions will be accepted…" |
The next part of the ITT was headed "Procurement timetable" and provided that the closing date for receipt of clarification questions specific to the ITT was 16 January 2012. Tenders were to be submitted by 13 February 2012 at 2 pm. If interviews were to be held, they would be on 29 February 2012. The provisional award decision would be notified to all tenderers on 12 March 2012.
There was a Paragraph 8.5 which addressed TUPE:
"1. The Council has sought from each current provider information concerning the terms of employment of the individuals considered by the current provider as likely to be eligible to transfer under the provisions of TUPE.
IMPORTANT NOTE: In order for the Council to release this information, a signed confidentiality agreement (Annexe 5) must be returned to the Council, if this has not been done previously…
3. Tenderers should note that staff eligible to transfer may come from more than one existing provider and that current providers include the Council itself and other providers from the public sector. Where staff transfer from the public sector, pension protections in addition to those prescribed under TUPE…will apply and also staff may retain a right to participate in the relevant pension schemes even if they do not currently do so…
5. Tenderers should take into account the following requirements:
[There is set out the same wording as in Paragraph 5 of the PQQ "Important legal notice"]
6. The issues raised in paragraph 5 are a non-exhaustive list of the primary issues to be considered. In the event of a bid being successful, the successful Tenderer will be expected to fully comply with the TUPE Regulations. Further details of staff transferring will be provided to the successful bidder by the current employer…
8. The Council is not the sole employer of the staff who may transfer and is dependent on the existing contractors for the provision of information concerning such staff. The Council and the existing contractors make no warranties or representations and give no undertakings as to the accuracy, completeness or sufficiency of any information relating to the employees of the Council and the existing contractors provided during the procurement process…"
Paragraph 8.6 addressed pensions:
"1. Tenderers must ensure that the pension rights of the staff who will or are considered likely to transfer are protected and that this is demonstrated in their tender…
2. To assist Tenderers, the Council has sought from each of the current employers pension information regarding those individuals considered by the current employer as likely to be eligible to transfer to a successful Applicant in accordance with TUPE.
3. IMPORTANT NOTE: In order for the Council to release these details, a signed confidentiality agreement (in the form prescribed in Annexe 5) must be returned to the Council if this has not been done…
13. Tenderers must make adequate financial provision in their pricing for any TUPE, redundancy and/or pension costs that they may incur from time to time including any...
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