HT-2024-000271 - [2024] EWHC 3039 (TCC)

Fecha: 13-Nov-2024

The Procurement

The Procurement

The Procurement was commenced by way of the issue of a Contract Notice on 13 November 2023. Interested bidders had to respond by noon on 8 December 2023 to the Standard Selection Questionnaire (“SSQ”) issued by OGL. RHH did so.

Following evaluation of RHH’s response to the SSQ, OGL invited RHH and other bidders to submit a tender for the Procurement. OGL did so by issuing the Invitation to Tender (“ITT”) on 29 January 2024.

The ITT required submission of tenders by noon on 13 March 2024 and provided that the contracts would be awarded to the most economically advantageous tender (“MEAT”) identified on the basis of the best price-quality ratio. The ITT stated that the ratio was 40% price and 60% quality (paragraph 6.2 of the ITT).

RHH submitted a tender by the deadline stipulated in the ITT.

10.

By contract decision notices dated 23 July 2024, OGL informed RHH that it had been unsuccessful in its tenders for the provision of domestic heating services (Lots 1.1 and 1.2) and that Aaron was identified as submitting the MEAT in both lots. The notices provided that RHH had scored 78.86 for Lot 1.1 and 80.15 for Lot 1.2 compared to scores of 93.75 and 96.25 for the winning bidder. RHH was ranked third and fifth respectively.

11.

On 29 July 2024 (Footnote: ¹), RHH’s solicitors, Simons Muirhead Burton (“SMB”), wrote to OGL alleging that the contract decision notices failed to comply with the requirements of Regulation 86 of the Public Contracts Regulations 2015 (“the 2015 Regulations”) and requesting that compliant notices be sent to RHH and that the standstill period be extended until at least 10 days after compliant contract decision notices had been sent.

12.

On 31 July 2024, OGL’s solicitors, Trowers & Hamlins (“T&H”), responded to SMB’s letter stating that OGL accepted that the contract decision notices were not fully complaint with the 2015 Regulations, that they would be withdrawn, new contract award notices would be issued and a new standstill period observed following issue of the further notices.

13.

New contract decision notices were issued to RHH and the other bidders on 7 August 2024. Those notices confirmed that RHH had been unsuccessful in its tenders and Aaron had submitted the MEAT in both lots. The scores awarded to RHH and Aaron and the rankings remained the same as was previously provided in the original notices. The new notices provided that the standstill period would expire at midnight on 19 August 2024.

14.

By an email sent at 17.21 on 16 August 2024, SMB served upon OGL the Claim Form issued by RHH dated 15 August 2024. The Claim Form contained generic particulars, at paragraphs 8 and 9 thereof:

On the basis of the limited information made available to [RHH] by [OGL] so far, [OGL] has breached its duties under regulation 89 as well as other obligations under the [2015 Regulations], including (without limitation) regulations 19, 24, 28, 55, 59, 86 and 87 and/or has breached enforceable general principles of retained/assimilated EU law (including (without limitation) those of equal treatment, transparency, non-discrimination, non-arbitrariness, proportionality, good administration, procedural fairness, protection of legitimate expectation and a duty to avoid conflicts of interest and collusion between tenderers, as well as a duty to conduct the procurement process free from manifest error and in accordance with the stipulated procedure set out in the ITT.

As a result of these breaches (or any of them), [RHH] has suffered and/or risks suffering loss and/or damage, consisting of the loss of opportunity to be awarded a contract or contracts under the Lots for which it tendered.

15.

Prior to the issue of the Claim Form, RHH had not provided OGL with any specific particulars of breach and/or any matters upon which it relied in alleging that OGL had breached its duties in the conduct of the Procurement. The only correspondence was a letter from SMB to T&H dated 14 August 2024 in which they had asked T&H to confirm that they were instructed by OGL to accept service of proceedings and that OGL should provide wide-ranging disclosure. T&H responded to SMB on 15 August 2024 confirming that it was instructed to accept proceedings but explaining the procedural concerns expressed in previous correspondence had been rectified, that no substantive concerns about the Procurement had been raised and therefore in those circumstances it was unclear why it had been asked to accept service of proceedings and/or why wide-ranging requests for disclosure had been made. T&H responded that, in those circumstances and in the absence of any grounds of claim having been raised, the requests for disclosure were refused.

16.

The requests for disclosure made in SMB’s letter were reiterated when the Claim Form was served: see SMB’s letter dated 16 August 2024.

17.

T&H responded by letter dated 22 August 2024 stating that, although RHH had issued and served a Claim Form, it had still not set out any grounds and continuing that if RHH “had genuine concerns about the Procurement … it should (at the very least) have set these out in correspondence to [OGL] before issuing a Claim and could have requested an extension to the standstill period … [i]nstead, and despite the fact that litigation should be a last resort, [RHH had] issued a Claim on unknown grounds, triggering the automatic suspension under Regulation 95". In those circumstances, T&H said that OGL would await receipt of the Particulars of Claim to understand the claims it was required to defend and would not be providing disclosure.

18.

On 22 August 2024, RHH filed and served Particulars of Claim, running to 31 pages and 116 paragraphs. RHH advanced three grounds:

(1)

first, that there was a conflict of interest in relation to Ms. Emma Nicklin, a pervious employee of OGL, who was now employed by Sureserve Group Limited (“the Conflict Challenge”);

(2)

second, that OGL committed manifest errors and/or breached its obligation to act with transparency in the scoring of some of the responses to the quality questions in RHH’s tenders (“the Scoring Challenge”);

(3)

third, that OGL committed a breach of its obligation of equal treatment in awarding the maximum score of 5 (excellent) to Aaron for its responses to the quality questions, demonstrating the alleged conflict of interest.

19.

By reason of the alleged breaches, RHH claimed damages for its wasted tender costs “if the tender procedure is abandoned” (paragraph 115) and that “had [OGL] acted lawfully in its conduct of the Procurement, the tender of Aaron … would have been disqualified and [RHH] would have obtained a significantly higher score on its tender for both Lots 1.1 and 1.2 and has, as a consequence, lost the opportunity to be awarded a contract for Lots 1.1 and/or 1.2" (paragraph 116). No claim for damages for lost profits was made by RHH.

20.

On 23 August 2024, SMB wrote to T&H requesting disclosure of all documents sought in previous correspondence but also a copy of the tender submitted by Aaron.

21.

On 9 September 2024, T&H wrote to SMB seeking RHH’s agreement (by 4pm on 13 September 2024) to an order lifting the automatic suspension by consent on the basis that: (i) the three grounds advanced in the Particulars of Claim did not establish a serious issue to be tried (ii) damages were an adequate remedy for RHH and (iii) in any event the balance of convenience favoured the lifting of the automatic suspension. T&H sought confirmation from RHH that, if it was not prepared to consent to an order lifting the automatic suspension, it would provide a “cross-undertaking in damages to compensate [OGL] for any losses suffered as a result of [OGL] being unable to enter into the contract and subsequently succeeding at trial …”

22.

The only response received was SMB’s letter dated 17 September 2024 in which it only stated that RHH “will not consent to the automatic suspension being lifted”. RHH did not set out the basis upon which it objected and did not respond to the request for a cross-undertaking in damages.

23.

On 19 September 2024, OGL filed and served its Defence (Footnote: ²), which denied (i) the breaches alleged by RHH in the conduct of the Procurement and the evaluation of the tenders and (ii) that any breach which could be established deprived RHH of being awarded the contracts under Lots 1.1 and/or 1.2 (or the opportunity thereof).

24.

On 3 October 2024, SMB wrote to T&H requesting disclosure of a wide range of documents (explicitly stated to be wider than those previously requested although disclosure of Aaron’s tender was no longer sought). In addition, disclosure was sought of the “moderation feedback” referred to in the Defence. SMB sought disclosure by 4pm on 8 October 2024 (within three working days) failing which RHH would make “the necessary application to court”.

25.

T&H responded by letter dated 8 October 2024 saying that:

(1)

in line with the principles of early disclosure set out in the case law and the TCC’s Guidance Note, OGL’s initial position was that RHH would not be entitled to early disclosure of all the information sought;

(2)

nonetheless, OGL was considering RHH’s wide-ranging requests;

(3)

but OGL would require a reasonable period to respond and would respond substantively by 17 October 2024.

26.

T&H disclosed the moderation feedback referred to in the Defence which RHH had requested.

27.

On 8 October 2024, RHH filed and served its Reply and a Request for Further Information.

28.

By letter dated 9 October 2024 from SMB to T&H, RHH objected to the time which OGL had sought in providing a substantive request and confirmed that it would be proceeding with its application. Less than an hour later, RHH filed and served its sealed application for specific disclosure, enclosing a draft order for specific disclosure “within 14 days” and a detailed witness statement in support.

29.

On 15 October 2024, OGL filed and served its application to lift the automatic suspension, with a draft order and witness statement in support.

30.

As promised, T&H provided OGL’s substantive response to RHH’s requests for specific disclosure in a letter dated 17 October 2024. Save that OGL agreed to disclose a copy of the Regulation 84 report in due course, it refused the other requests.

31.

On 22 October 2024, OGL filed and served a Response to RHH’s Request for Further Information.

32.

By letter dated 31 October 2024, OGL disclosed, having redacted personal data and confidential and commercially sensitive information:

(1)

a copy of the Regulation 84 report;

(2)

a full copy of the moderation feedback for RHH’s responses to the quality questions.

33.

On 1 November 2024, OGL filed and served its evidence in relation to RHH’s application for specific disclosure.

34.

On 4 November 2024, RHH filed and served its evidence in relation to OGL’s application to lift the automatic suspension.

35.

On 6 November 2024:

(1)

OGL filed and served evidence in response in relation to the automatic suspension application;

(2)

RHH filed and served evidence in response in relation to the specific disclosure application. Included within the exhibit was a letter from SMB to T&H dated 6 November 2024 narrowing the scope of the specific disclosure application considerably.