BURNLEY DISTRICT REGISTRY
B e f o r e :
| SSP Health Limited
|- and -
|NHS East Lancashire
Mr Rob Williams (instructed by Hempsons) for the Defendant
Hearing date: 25th November 2013
Crown Copyright ©
District Judge Bury :
Due to the lateness of the hour when the hearing concluded and the fact that an urgent family matter had to be dealt with I reserved judgment and indicated to the parties that I would send my draft reserved judgment at the earliest opportunity.
This accordingly is my judgment.
References in this judgment are to Tab and Page numbers within the hearing bundle with which I was provided.
- 1 an Application by the Defendant dated 4 March 2013 seeking an order that:
the claim be struck out:
- on the ground that the claim is statute barred (alternatively seeking summary judgment on the ground of limitation)
- in the alternative, that the claim be struck out on the grounds that the claim form and particulars of claim disclosed no reasonable grounds for bringing the claim and/or are an abuse of process.
- additionally on the basis that the claim had been issued in the wrong court. I shall deal with that aspect below.
- 2 an Application by the Claimant dated 22 July 2013 seeking an order that they have permission to file and serve amended particulars of claim.
- 3 an Application by the Claimant dated 18 November 2013 for permission to adduce expert evidence and for an order giving them permission to rely upon (draft) re-amended particulars of claim.
Background: the Claim and the Hearing on 25.11.13
Application to Amend
" amendments in general ought to be allowed so that the real dispute between the parties can be adjudicated upon provided that any prejudice to the other party caused by the amendment can be compensated for in costs"
The White Book goes on (at 17.3.6) to confirm that amendments will not be allowed if they have no prospect of success and that the correct test is that contained within CPR 24 namely the test on Summary Judgment.
The issue of limitation is not one which is relevant to consider when looking at the Claimant's stand alone application for permission to amend and I believe the proper approach is for me to decide on the amendments as put forward and simply ask whether they have no real prospect of succeeding.
"(1) this regulation limits the time within which proceedings may be started where the proceedings do not seek a declaration of ineffectiveness.
(2) subject to paragraphs 3 to 5 such proceedings must be started within 30 days beginning with the date when the economic operator first knew or ought to have known that grounds of the starting of the proceedings had arisen" (my emphasis)
A subsequent provision allows the court to extend the time limit where it is considered that there is a good reason for doing so. No Application for an extension was made by the Claimant and the battleground between the parties, on this point of limitation, (acknowledged by both sides in their respective Skeletons) has been whether the proceedings were started within the 30 days as set out above.
a. what level of knowledge is required by the Claimants to satisfy the statutory test set out above and
b. when they had that knowledge.
37.1 At para 8 he sets out the approach to judicial consideration of the challenges to the process contemplated by the Regulations :
" under the 2006 Regulations the principal way in which an unsuccessful bidder can challenge the proposed award of a contract to another bidder is to show that the public bodies evaluation of the rival bids either involved a manifest error or was in some way unfair or arose out of unequal treatment. Accordingly in deciding such claims, the courts function is a limited one. It is reviewing the decision solely to see whether or not there was a manifest error and/or whether the process was in some way unfair. The court is not undertaking a comprehensive review of the tender evaluation process; neither is it substituting its own view as to the merits or otherwise of the rival bids for that already reached by the public body"
An analogy is thereafter drawn between these types of claim and judicial review proceedings where the court notes the rarity with which expert evidence is allowed.
37.2 At para 15 he sets out the correct approach to the test of manifest error and recites with approval the decision of Mr Justice Morgan in Lion Apparel Systems Ltd v Firebuy Limted  EWHC 2179 (Ch) which states :
" if the Authority has not complied with its obligations as to quality transparency or objectivity then there is no scope for that body to have "a margin of appreciation" as to the extent to which it will, or will not, comply with its obligations.
In relation to matters of judgment, or assessment, the Authority does have a margin of appreciation so the court should only disturb the decision where it has committed a " manifest error".
He then conducts a review of cases regarding expert evidence and at paragraph 20 says this:
" in summary, I consider that the authorities demonstrate that, where the issues are concerned with manifest error or unfairness, expert evidence will not generally be admissible or relevant in judicial review or procurement cases. That is in part because the court is carrying out a limited review of the decision reached by the relevant public body and is not substituting its own view for that previously reached; in part because the public body is likely either to be made up of experts or will have taken expert advice itself in reaching a decision; and in part because such evidence may usurp the courts function"
The possibility of exceptions to this general approach are considered at para 21 but at paragraph 22 he asks himself the question:
" is this a claim where the technical background is so complex that explanatory expert evidence is required, and/or is this an unusual case where expert evidence on some or all aspects of the tender evaluation process is required in order to allow the court to reach a proper view on the issues of manifest error or unfairness?"
38.1 the claim is so technically complex that explanatory expert evidence is required or
38.2 it is an unusual case where expert evidence on the tender evaluation process is required to allow the court to carry out its proper function.
Mr Butler for the Claimant accepts these propositions in his written submissions and contends also that this is a case of manifest error.
There are 3 questions and they are detailed at 20/133.
Knowledge and Limitation
" I believe the limitation in this matter was 24th of December 2012. This is due to the fact that the Claimant only had all (sic) relevant information and knowledge that the process had not been undertaken a fairly and equitably when it received full and final disclosure including the Freedom of Information disclosure which was received by the Claimant on 27 November 2012"
" I can confirm that ( the claimant) was not in a position to know that they had a claim against (the Defendant) until we had received an actual copy of the bid submitted by the preferred bidder on 27th of November 2012. Until this stage SSP did not have knowledge of the facts which clearly indicated what standard of information or bid content the preferred bidder had been evaluated against, and whether the scores attributed to the bid by the evaluators were a fair reflection of the standard and the strength of the bid submitted. It was only at this stage that I had knowledge of the facts which indicated an infringement of the 2006 Regulations".
That is the extent of the admissible evidence from the Claimant.
55.1 the Claimant was told it had been unsuccessful in its bid on 11 September 2012.
55.2 the Claimant received a written debrief on 13 September 2013 and a verbal debrief on 21 September 2013. On 9 October the Claimant was provided with their own scores, the scores of the winning bidder and the characteristics and relative advantages of the winning bidder.
55.3 The Claimant's then solicitors wrote in detail to the Defendant's solicitor on the 10th and 19th of October requesting further information, threatening the issue of a claim and the likelihood of protective proceedings being issued should there be an unsatisfactory reply from the Defendant.
56.1 by their letter of 10 October the claimant's solicitors sought information that had not been provided in the debriefs specifically:
a) the scores awarded by each evaluator for both bids
b) the notes and minutes of the evaluators of Claimant's bid
c) the notes of the evaluators during the consolidation meeting
d) copies of correspondence between the evaluators about the claimant's bid
56.2 by their letter of 17 October the Defendant's solicitor replied to each of the numbered points above either enclosing the required documents or, in respect of c) confirming no such notes existed.
56.3 the Claimant responded through their solicitors by letter of 19 October setting out their dissatisfaction with the quality and extent of some of the information provided and asking for a copy of the successful bid relying on the Freedom of Information Act.
Thus by 19th October the issues underpinning the Claimant's re- amended pleading were already the subject of detailed correspondence.
56.4 the Defendant's solicitors provided a redacted copy of the winning bid under cover of their letter of 21 November but withheld significant parts of that document citing confidentiality and other reasons.
60.1 (i) Dr Angela Manning was involved in the process. She apparently is a person involved with the Defendant and with whom the Claimant had had prior dealings - and which had been the subject of prior proceedings.
The Claimant accepted that this allegation could not be sustained: it accepted that the proceedings in respect of this allegation were out of time by the time the proceedings were lodged at Accrington County Court. I need not therefore consider this further.
60.2 (ii) the Claimant's scores were inconsistent and disproportionate to the information supplied; the Claimant having a track record of managing and delivering services whereas the preferred bidder did not.
60.3 (iii) the preferred bidder was treated more favourably than the Claimant as their scores had been moderated upwards whereas the Claimant's scores had not.
60.4 (iv) the evaluation and marking process lacked fairness openness and transparency in that no notes had been made
60.5 (v) a generalised assertion of manifest error saying that if the Defendant had correctly assessed the Claimant's bid they would have been successful
60.6 (vi) the moderated scores revealed inconsistencies resulting in the successful bidders scores being moderated upwards and the claimant's scores downwards.
- .1 that they were actually under no obligation to provide a copy of the winning bid under the Regulations and that they did so only arising from the Claimant's request under the Freedom of Information Act.
- .2 they went beyond their obligations under the Regulations to provide "follow up" information to the debriefs thus providing the Claimant with more than was needed for them to ascertain whether to claim
- .3 that, in any event, the Claimant had been provided with all of the information upon which they now propose to make their claims at the latest by the end of October 2012.
63.1 he fails to provide any details as to what he saw within the winning bid and which he had not seen before - that provided him with sufficient knowledge to only then found a claim. In view of the absence of this vital information I enquired specifically of counsel as to what feature of or item within the other bid provided this key knowledge. He was similarly unable to assist. This is especially important in the light of the Defendant's contentions that no "new" material was provided (in respect of the matters now pleaded) with the copy winning bid provided to the Claimant.
63.2 he makes no comment on the Defendant's evidence that the Claimant had knowledge of the matters now complained about at a much earlier stage and, indeed, that they had been raised in the correspondence detailed above before the copy of the winning bid had been received.
63.3 he makes no comment on the Defendant's (unchallenged) position set out in Hempsons letter of 11th October 2012 that the Defendant had gone beyond the requirement of Regulation 32 in providing information to the Claimant in respect of his complaints and queries.
i) (Dr Manning not now pursued)
ii) (60.2) : this is a generalised complaint about scoring. It makes no specific complaints about any unfairness or manifest error. Even assuming that this is a matter properly reviewable by the court, in my judgment the Claimant had been provided in early October with information as to how its bid had been scored and on what basis it had been scored. The 30 day period in respect of this allegation began with the Claimant's receipt of the scoring information which was no later than 19th October. This is the date that the claimant's solicitors replied to the Defendant solicitors following receipt of Hempsons' letter of 17 October. This allegation is accordingly out of time at the date of issue.
iii) (60.3) : this is an allegation simply that the Claimant's scores have not been moderated upwards. It is not clear to me what error or unfairness is alleged thereby. The fact however of the absence of moderation had been known to the Claimant following their receipt of the letter from Hempsons dated 17 October and my conclusion is that this allegation is similarly out of time.
iv) (60.4) : this allegation is that no notes were taken nor minutes kept. This seems to me to be a matter of evidence rather than substantive claim. In any event it was similarly known following the letter of 17 October. It is also statute barred.
v) (60.5) : this simply asserts that the Defendant made manifest errors without providing any information as to the basis of that assertion. As such, and in the absence of any further information from Dr Pitalia, I am of the view that it adds nothing to the other allegations and is simply a generalised complaint with no detail at all. It is plain from the claimant's then solicitor's letter of 19 October 2012 that they were already asserting unfairness(or potential unfairness) and time therefore runs in my view from the receipt of the letter of 17 October. This allegation is statute barred.
vi) (60.6) : Counsel for the Claimant accepted that this simply repeated iii) above and my conclusion is therefore the same.
" the standard ought to be a knowledge of the facts which apparently clearly indicate, though they need not absolutely prove, an infringement".
Lord Justice Elias goes on to comment (at para 30) that the parties should not confuse the issue of having knowledge of the :
" detailed facts which might be deployed in support of the claim with the essential facts sufficient to constitute a cause of action".
It is only the latter that is required to come to a decision on the commencement of proceedings.
" it seems to me that a tenderer who finds himself in such a situation faces a stark choice. He must either make his challenge or accept the validity of the process and take his chance on being successful, knowing that the other tenderers are in the same boat. In my view, it is unreasonable that he should sit on his rights and wait to see the results of the bidding process on the basis that, if he is successful he will remain quiet, but otherwise he will start proceedings "
This reflects the harsh reality of these Regulations: that an unsuccessful bidder has only very limited 'rights' to information yet only a very short period within which to decide whether there has been an infringement of the Regulations (and one which is "sufficient to constitute a cause of action"). In this case the Defendant went beyond (well beyond it could be argued) its obligations in providing information to the Claimant after its bid and thereby provided to the Claimant the material it needed to form a view as to whether it could bring a claim.
Whilst dealing with different facts in this case the message from the two cases referred to above is clear: that disaffected tenderers must issue sooner rather than later or risk falling outside of the statutory period of limitation however short that may be. The Scottish case that the Claimant relies upon seems to me plainly distinguishable on its facts, not binding upon me and is less persuasive than the approach of the English courts as noted above.
Accordingly to be applied in answer to the issue posed at para 31 (a) above is that set out in the case of Sita.
C.R.J. Bury, District Judge
Burnley Combined Court