HT-2023-000379 - [2024] EWHC 1201 (TCC)

Fecha: 20-May-2024

BACKGROUND

BACKGROUND

This dispute concerns three contracts. First, a Framework Agreement made between the Defendants. Second, a contract made between the Defendants and the Claimant which was a call-off contract under that framework. And third, a contract made between the Defendants and a company known as Assist, which the Defendants say was another call-off contract under the same framework, but which the Claimant says was purportedly within but was in fact outside the framework.

The Framework Agreement

In August 2020, a Framework Agreement was entered into between East of England Broadband Network (the Authority) and the Second Defendant. The Framework Agreement set out the basis upon which the Authority (on behalf of User Bodies, which include the First Defendant NHS Trust) was able to purchase, and the Second Defendant was obliged to provide, certain facility management services on a call-off basis. The Call-Off Contract award procedures, and the terms and conditions of any such Call-Off Contract, were set out in the Framework Agreement. The Framework Agreement permitted the Second Defendant to sub-contract, with the consent of the Authority on terms set out in clause 26. There is no procurement challenge to the Framework Agreement, which would in any case be far out of time.

Call-Off Contract with the Claimant

10.

Pursuant to the Framework Agreement, the First Defendant placed an order dated 21 October 2022 for certain specified Security Services to be provided by the Second Defendant, via the Claimant as sub-contractor. This gave rise to a Call-Off Contract directly between the Claimant and the First Defendant, on terms which included the Call-Off terms and conditions set out in the Framework Agreement (“the Call-off Contract”).

11.

This is the contract, pleaded in paragraphs 2-7 of the Particulars of Claim, which the Defendants are said to have breached. The Defendants do not seek summary disposal of the breach of contract claim, and therefore accept, at least at this stage, that it is a claim with real prospects of success. In those circumstances, it is unnecessary to examine it in any detail, but it is relevant context to a proper understanding of the procurement claim, as there is considerable factual overlap between the two causes of action.

The Assist Contract

12.

The circumstances leading to this contract are in dispute and are not to be resolved on this application. The Claimant’s allegations (set out in paragraphs 8-21 of the Particulars of Claim) can be summarised as follows:

12.1.

On or about 5 February 2023, the First Defendant (acting on behalf of both Defendants) wrongly asked the Claimant to cease providing fire warden security services at the Royal London Hospital, which were being provided pursuant to the Call-Off Contract; and wrongly appointed Assist Services Group Limited (“Assist”) to provide those services in its place.

12.2.

On or about 28 March 2023, the Defendants wrongly sought to terminate and/or did terminate the Claimant’s services at St Barts Hospital with effect from 10 April 2023, and immediately thereafter appointed Assist in its place.

12.3.

In so doing, the Defendants breached the Call-Off Contract, including because Assist had not been selected through any proper public procurement process; in particular, had not been selected pursuant to the Framework Agreement; and had not been chosen pursuant to an independent or impartial selection process (see paragraphs 11 and 18(2) of the Particulars of Claim).

12.4.

On 9 June 2023, the Defendants wrongly awarded Assist a written contract, backdated to February 2023, purportedly pursuant to the Framework Agreement (“the Assist Contract”).

13.

In terms of documents relating to the Assist Contract which are before the Court:

13.1.

There is an Order Form dated 7 June 2023 between the First and Second Defendants, and Assist (or rather Assist Security Limited) as sub-contractor, which stated that it was placed pursuant to the Framework Agreement (the same framework agreement under which the Call-Off Contract with the Claimant was made). It is in a similar form and style as the order relating to the Claimant’s contract.

13.2.

The Court has also seen a print-out from the “Contracts Finder” gov.uk website, with a “published date” of 3 July 2023. This refers to the award of a contract with the Second Defendant on 21 June 2023 (with a backdated start date of 6 February 2023) in relation to fire warden services, and describes it as being a call-off from the Framework Agreement. The Defendants say this was a notice in respect of the Assist Contract. It is apparent from the circumstances that it was at least intended by them to be such a notice. The Claimant however points out that Assist is not identified as being the sub-contractor in the publication and alleges that there were other deficiencies and errors in the notification. I shall have to come back to that ‘publication’ in due course.

14.

For their part, although there is currently no defence in this action, the Defendants accept that Assist was appointed in February 2023 to provide fire warden services; and that on 9 June 2023 Assist was awarded a contract as sub-contractor which was backdated to February 2023, and which (the Defendants contend) was a call-off contract pursuant to the Framework Agreement, in much the same way as the Call-Off Contract with the Claimant had been.