England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Cardiff Civil Justice Centre 2 Park Street, Cardiff, CF10 1ET
		15 April 2011

The Honourable Mr Justice Blake:

1. On the 27^th January, 2010 the claimant firm submitted its tender to the defendant Commission to bid for a contract for new matter starts (NMS) in the field of immigration and asylum law in the geographical area of Bristol. The deadline for submission of such a tender was the 28^th January and the successful bidders were to be awarded contracts from November 2010. This was a competitive tender governed by the Public Contracts Regulations 2006 and the general principles of law derived from the Treaty on the Functioning the European Union (TFEU).
2. To participate in this competition it was necessary for each bidding firm to submit its tender by providing the information required on the defendant's internet based electronic portal. The claimant had previously held a contract for provision of immigration legal services and its accredited immigration supervisor and head of its immigration department was Mr Khalid Khashy. It was Mr Khashy who completed the claimant's bid on the 27^th January.
3. On the 28^th June 2010 the defendant informed the claimant that its tender was rejected as it had been awarded insufficient points to be given priority ranking amongst eligible firms in the Bristol area where there was an excess of bidders for the NMS to be awarded. The claimant appealed on the 7^th July 2010 and submitted in support of its appeal detailed reasons why it qualified for 53 points rather than the five points awarded. By the time of the hearing it was acknowledged that the highest number of points that could have been claimed on the information either provided or intended to be provided was 51. The lowest bidding successful tenderer had been awarded 49 points, and therefore if the claimant firm were entitled to all the 51 points it contended for it should have been awarded the contract for the NMS in question.
4. On the 5^th August 2010 the defendant refused the appeal explaining that in the claimant's submission on the 27^th January no entries were recorded in the tender application on that part of the form that would be used for awarding points that would form the basis of priority ranking. The fact that the claimant firm had been awarded five points was because the defendant's computer had been able to populate one part of that form automatically from information supplied elsewhere even though the claimant had provided no information.
5. On the 5^th November 2010 after exchange of correspondence on the issue this application for Judicial Review was lodged and in due course following a number of case management directions by judges sitting at the Cardiff Civil Justice Centre a rolled up hearing for permission and substantive relief if permission is granted was listed for hearing over two days on 17 and 18 March 2011. The contracts for the successful tenderers were awarded on 14 November 2010. On 11 February 2011 this Court granted interlocutory relief requiring the defendant issue a limited number of new matter starts to the claimant pending the hearing of the claim. It was further directed that a number of the witnesses for either side should be made available for cross examination and that the claimant had leave to call Mr Gary Widdows an expert witness on the computer technology relevant to the electronic portal bidding system used for this contract. In the event I heard all evidence from Mr Khashy and Mr Widdows for the claimant and from Mr Amadife, Mr Bryant, Miss Ward, Miss Wood, all members of the defendant's staff, for the defendant. In addition I heard from Mr Quinn of Bravo Solutions, the firm that designed and managed the defendant's e-Tendering portal and had extensive experience in providing electronic tender tools for the UK government.
6. I reserved my decision at the conclusion of the hearing but I did not extend the injunctions requiring the defendant to continue to provide new matter starts pending delivery of this judgment. I have reached the conclusion that this claim fails on the merits. I now give my reason for reaching this conclusion.

The Factual Basis of the Claim

7. The defendant's e-Tendering procedure required those who submitted a tender to provide a variety of information through its internet portal and such information was to be provided in a number of different ways. The first part of the form was a pre qualification questionnaire (PQQ) to demonstrate that the tenderer had sufficient financial and technical capacity to be able to provide the services and it was not excluded from doing so for misconduct and related reasons. This part of the form could be answered by completing questions in a box. The next part of the form was an invitation to tender that was divided into two broad areas. The first was the technical envelope 'essential criteria' and the second the commercial envelope 'selection criteria'. The essential criteria required applicants to provide a number of details of the operating capacity to deliver the services being bid for. This was to be demonstrated by downloading documents, filling them out in free text and then attaching the completed documents to the tender form on the portal.
8. The selection criteria were completed in a different way. There were a number of rows on the application form representing specific access points from which legal services could be provided within the area of the tender. For each row there were then a number of columns to complete indicating respectively where a bid was being made, the area reference, the description of the bid, the number of new matter starts bid for respectively in immigration and asylum, and the office postcode. Thereafter there were eight numbered columns dealing with different aspects of the selection criteria. These columns were to be completed by drop down options in each box that were then entered and saved and depending on the option chosen a certain number of points were to be awarded. The instructions for completing this part of the form explained that not all the selection criteria were equally weighted and further information as to the scoring system was given in an accompanying document information for applicants (IFA) that gave a more detailed explanation as to the bidding system and what needed to be completed and why.
9. In substance a firm who could not comply with the requirement of the PQQ was not eligible to bid in the tender process. To have any prospect of being awarded a contract, the essential criteria needed to be submitted. Thereafter the selection criteria would only come into play if the number of bids by eligible firms exceeded the number of new matter starts on offer. Thus strictly speaking it was not necessary to have completed any of the drop-down options. It was possible that there would be no competition for the available contracts. However, once there was competition between qualified applicants the selection criteria would prove decisive in the granting of priority between them.
10. Mr Khashy spent some time studying the information in the IFA and related material before he completed the claimants bid. There had been some technical difficulties encountered by bidders generally with respect to different forms of word processing software or internet providers down loading documents and such like. There was a technical advice line made available by Bravo Solutions. Technical support was available to assist tenderers up until mid-day on the 28 January when the tendering closed.
11. Mr Khashy in his witness statement and oral evidence explained that he was only bidding for one access area in the tender process and having successfully completed the PQQ and provided all the information needed for the essential criteria, he turned his attention to the selection criteria. As he was only bidding for one access area he only completed one row of columns and for the material row he entered the number of new matter starts in Immigration and Asylum for which the firm were bidding. He then went through each of the drop down menus and selected the appropriate answer in each case. He saved the selected option and then printed out the completed bid. When he did so he noticed that on the print out each of the boxes where a drop down option had been selected was showing blank with a dash rather than the answer he had selected and saved on behalf of the firm. He went back to the screen and saw that on the screen version that the answers he had selected were still showing and therefore assumed that the print out version had been asterisked for reasons of confidentiality. He then published his bid by transmitting it through the portal and received an e mail acknowledgement that the bid had been submitted from the technical provider. He was aware that the defendant could not open the bid or begin to evaluate any of them until a month after the bid had closed. He was aware of the competition rules from the IFA.
12. It is common ground that the bid actually received by the defendant and subsequently evaluated by it was in the same form as the print out that Mr Khashy had retained before it was submitted, that is to say all the entries on which the claimant firm could score points were blank. During the course of Mr Widdows' evidence the bid was accessed electronically through the internet and it remains in that form today although there has been some technical modification to the appearance of the bid form in the supervening months since it was submitted.

The claimant's case

13. The claimant's primary case is there must have been some inexplicable failure of the defendant's software that failed to retain the options he selected and saved and that led to a divergence between the printed copy and what appeared on the screen.
14. The secondary case is that the technology supporting the bidding process was so inadequate as to confuse and mislead a reasonably diligent tenderer into believing that the bid had been successfully completed in all material parts when it had not. In particular, it was submitted that it would have been possible for the software to have made completion of a drop down field compulsorily once it had been indicated in one of the earlier columns that the applicant was in fact bidding for a particular number of new matter starts in a particular access area. Comparison was drawn with commercial online booking sites were the applicant is unable to complete the form unless and until all mandatory fields have been entered.
15. From the premise of defective technology that the defendant had required tenderers to use, the legal case was mounted that there is a duty of fairness on the defendant to either alert the tenderer that relevant information was missing and had not been supplied and/or endeavour to complete the missing information from other data provided by the applicant either in other parts of the same tender or extraneously to the defendant in the course of a pre-existing relationship.
16. Finally, it was submitted that the way that the LSC had behaved toward other tenderers both in the immigration contract tender and different tenders demonstrated that the claimant had been treated inequitably and therefore in breach of the general principles of European public law and the duty under regulation 4 of the Public Contracts Regulations 2006 to act transparently and treat economic operators equally and in a non-discriminatory way.

Conclusions

17. The following three points emerged by way of consensus from the technical evidence before me (Mr Widdows and Mr Quinn):-

i) There was no system error in the defendant's computer causing it to delete information that had previously been published to it.

ii) It was not possible on the configuration that was adopted for this particular portal for a printout to differ from the information recorded and saved electronically. There could be no divergence between what had been saved on screen and printed out.

iii) It was possible technically to require the selection criteria part of the form to be completed and prevent an applicant from completing the submission without first populating the material columns in a row for which a bid was being made. The defendant had chosen not to activate this system as it was not necessary to make a bid for any row or indeed a legal requirement to submit any of the criteria for which points could be awarded in a competitive process. In addition, Mr Quinn considered the online and other instructions sufficiently informed any applicant of what the position was.

iv) There had been technical problems earlier in the tendering window about the compatibility of certain kinds of word processing software and internet service providers. Advice had been given by the technical support team how to navigate through this problem. Mr Widdows thought this made the software user-unfriendly.

18. Whilst Mr Khashy undoubtedly honestly and genuinely believed that he had completed the selection criterion drop down menus and saved them I have no hesitation in reaching the conclusion that he could not have done so on the 27^th January when his bid was published. He must therefore be mistaken as to what he now says he saw and did as it is not possible to print out the results of a completed form in the way that it appears different from what was appearing on the screen at the time of the printout, yet this is what Mr Khashy's evidence would necessarily involve if it were accepted at face value.
19. It is not sensible to speculate why the information was not successfully selected and saved before publication but I have no doubt that it was not. It is of some interest that in the grounds of appeal submitted in response to the June decision, the claimant does not complain that they should have been awarded the points because they had provided the information in the selection criteria drop down options. It argued the case that they were entitled to the points on the facts set out in the grounds and because the LSC were aware of this information from previous dealings with the firm or from information supplied elsewhere in the bid (see points 1, 2, 3, 7, 8 and 9).
20. Although the overall tender form was a complex one to complete and there had been software and related problems, the claimant's failure to complete the selection criteria was not a consequence of technical failure or inadequacy for which the defendant or its independent contractor was responsible. In my judgment, the information provided to tenderers made clear what they had to complete as did the on-line instructions immediately preceding the relevant part of the form. Although there might have been electronic aids to guard against accidental omissions and errors, the defendant was entitled to conclude that a process of requiring mandatory fields to be completed was not appropriate in a part of the form where there was no requirement to bid for any particular area or when bidding score any points under the selection criteria. There was no evidence that other applicants had problems completing this part of the form in the absence of mandatory field requirements. There was some evidence to suggest that Mr Khashy had misunderstood other instructions about completing this part of the form as the bidding option remained for areas where the claimant was not intending to bid.
21. Having noticed that the print-out did not record the information he thought he had selected and saved, it was possible for Mr Khashy to avail himself of the technical support line that was open to the end of the bid and check whether his assumption that the online version was being anonymised for some reason was correct. If he had done so he could have returned to the form and ensured that it was properly completed and saved and had a printed copy of what he had submitted electronically.
22. There was no confusing or misleading reassurance generated during the tender application process. Whilst an electronic receipt was generated from Bravo Solution on 27 January indicating that the bid had been successfully transmitted, this could give no comfort as to the contents of what had been transmitted. The claimant was aware that it was the LSC who would open the bid some time after the closure of the competition and examine its contents; this was not the work of the technical support company. The analogy here is with confirmation that a properly addressed envelope had been received. Such confirmation gives no assurance about what had been put into the envelope.
23. As a consequence of these findings both the claimant's primary and secondary cases fail. The defendant not having deployed a defective system, or misled or confused applicants by the terms of the tender or its conduct subsequently, there was no scope for a duty of inquiry into other data held and/or alerting the claimant of the defects in its tender process and so allowing it to amend and improve on its bid by providing the information that it had originally intended to supply.
24. The claimant relied on Case T-211/02 Tideland Signal Ltd v Commission of the European Communities [2002] ECR II-3781 CFI. In that case a company had submitted a tender for a commercial project with confirmation that the tender remained open for 90 days from the opening of the bids and within the validity period stipulated in the instructions to tenderers. The Commission subsequently extended the tender period and invited re-applications. The applicant re-submitted the same bid that was rejected because it had not confirmed that the bid was open for 90 days from the start of the re-tendering process. The Court found that there was an ambiguity in the information provided as to the duration of the bid because the 90 day period had been put back, but the applicant was confirming that the bid was open throughout the validity period required in the instructions. There was a power in section 19.5 of the Commission's Instructions to Tenderers for it to seek clarification within 24 hours of submission subject to the requirement that clarification must not seek correction of formal errors or major restrictions affecting performance of the contract or distorting competition.
25. The Court concluded at [37]:

"The Court holds that the power set out in section 19.5 of the Instructions to Tenderers must, notably in accordance with the Community law principle of good administration, be accompanied by an obligation to exercise that power in circumstances where clarification of a tender is clearly both practically possible and necessary…. While the Commission's evaluation committees are not obliged to seek clarification in every case where a tender is ambiguously drafted, they have a duty to exercise a certain degree of care when considering the content of each tender. In cases where the terms of the tender itself and the surrounding circumstances known to the Commission indicate that the ambiguity probably has a simple explanation and is capable of being easily resolved, then, in principle it is contrary to the requirements of good administration for an evaluation committee to reject a tender without exercising its power of clarification".

26. Although paragraph 11.8 of the defendant's IFA gave it the right to seek additional information/clarification, I conclude that Tideland cannot assist the claimant in the present because:-

i) There was no ambiguity in the bid, simply an uncompleted section of the form. Although some parts of the data required to score points might have been culled from information provided elsewhere in the bid, not all of the information that the claimant needed to supply to gain 51 points could have been so derived. The LSC could have identified that the claimant's firm was a qualified solicitor's practice based at an address in Bristol, but other information it had supplied elsewhere was subtly distinct from the questions asked in the selection criteria part of the form. The provision of information relevant to the selection criteria and the non-completion of that part of the application form, did not constitute an ambiguity that the defendant was bound to inquire into.

ii) The exercise of the power of inquiry did not arise in circumstances where the imprecision of the tender terms or the defendant's subsequent conduct required it to exercise the power. The defendant had not caused the claimant's failure to provide the relevant material.

iii) An overbroad exercise of the power to seek clarification would be contrary to the principle of equality and fair treatment of all tenderers. The CFI acknowledges this limit at [38] in Tideland and a similar emphasis has been attached to this principle in the decision of David Richards J in Leadbitter v Devon County Council [2009] EWHC 930 (Ch) at [63] to [68], approved by the Court of Appeal in Azam v Legal Services Commission [2010] EWCA Civ 1194.

iv) It would be unfair to rival tenderers for the defendant either to have allowed the claimant to amend its application by completing it, or to fill in the selection criteria on behalf of the claimant from information that might have been available to it extraneously. Paragraph 11.6 of the IFA makes clear it is the responsibility of applicants to make sure all tenders are fully and accurately completed and there is no obligation on the defendant to obtain missing information or documents. Paragraph 11.7 explains that information already provided to the LSC in a previous contract could not be used to populate the PQQ and ITT "to ensure that we can assess each tender is affair, like for like and reasonable manner". Paragraph 11.23 indicates that applicants must not amend or alter any document comprising part of their tender after the closing time and date. All tenderers would expect those rules to be consistently applied.

27. The claimant also relied on certain passages in the decision of HHJ Purle QC sitting as a High Court Judge in the Birmingham District Registry in JR Jones v Legal Services Commission [2010] EWHC 3671 (Ch). This was a decision concerned with the same tender process and the same IFA. The claimant firm had mistakenly selected the second option in the drop down menu in the selection criteria when it was entitled to have selected the first option as it had represented clients before the AIT and this would have been known to the LSC. The court heard evidence from Mr Bryant, the defendant's senior legal manager, who apparently indicated how the paragraph 11.8 power would be exercised without infringing the principles set out in paragraphs 11.6, 11.8 and 11.23. He is recorded at [19] as saying:

"We would only exercise discretion if it is apparent on the face of the application that something important was missing or there was an inconsistency".

28. HHJ Purle QC observed at [20] that this approach resolved the tension between the paragraphs and:

"There is a world of difference between a tender which is complete, unambiguous, and contains no inconsistencies, as to which there is no scope for seeking further information or clarification, and one which is incomplete or with inconsistencies which may need to be resolved".

29. In my judgment the judge was there commenting on the evidence of Mr. Bryant rather than laying down his own conclusions as to when there was a duty to clarify missing documents. His conclusions on the law are set out at [66] to [70] where he is cautious about when it might be lawful to exercise the power to clarify where there is no prior fault on behalf of the contracting authority. He applied the observation of Rimer LJ in Azam v Legal Services Commission (supra) to the effect that the essence of a competition by way of tender is "to provide all competitors with an equal opportunity to make their case".
30. In my judgment, this is the answer to the claimant's case that there was duty on the defendant to assist them make good the defects in their application. Viewed entirely from the point of view of a public law duty to act fairly, it may well be that the exercise of a discretion to grant a benefit should be based on all matters that could or should be known to the authority, and that fairness might well include a reasonable opportunity to correct obvious errors without changing the fundamental nature of the bid submitted. It is after all in the public interest that a well-qualified and experienced provider of legal services in the field of immigration should be permitted to continue in business. However, any such duty is severely circumscribed where there is a competitive tender and an over-riding duty to treat all tenderers equally. Here for reasons that were not the responsibility of the defendant, the claimant had failed to supply the information that would have lead them to being ranked in priority where there was competition for the award of NMS. Any general duty to give an applicant an opportunity to correct errors in the absence of fault by the defendant, yields to the duty to apply the rules of the competition consistently and fairly between all applicants, and not afford an individual applicant an opportunity to amend the bid and improve its prospects of success in the competition after the submission date had passed.
31. It is for similar reasons that I cannot accept the claimant's final head of submission that it had been treated unequally by comparison with others. I am satisfied that the examples of more favourable treatment relied on by the claimant are not treating like with like. Some were separate competitions such as the criminal tender where the rules were different and where there was no competition between tenderers at all. All those eligible to provide services were afforded NMS. In other cases any opportunity granted to correct errors was in respect of the PQQ part of the application as to whether a firm was qualified at all. This was not a competitive issue and the defendant was entitled to give greater assistance to applicants whose claims could be seen to be unintentionally defective on their face. For this reason also, the defendants could lawfully assess the bid of another competitor in this competition (Immigration Advisory Services) in a way that both rendered it eligible for the competition at all and improved its points score marginally from information already held. The claimant misunderstood that IAS was being helped to acquire a minimum pass mark on the selection criteria as there was no such minimum. IAS would thus have been awarded the contract irrespective of the extra point they were given from information they had supplied in the tender or if some points had been awarded the claimant from information it had supplied elsewhere in the tender.
32. There is a judgment call to be made by the public contracting authority as to how and when general fairness must yield to equal treatment. The evidence before me did not establish that the claimant had been disadvantaged by comparison with more favourable treatment of others in the same situation. Although Mr Bryant gave evidence before me, he was not questioned about his evidence in the JR Jones case (noted above) and that there was differential treatment in this case applying that test. The claimant's case of breach of the equality principle is not made out.
33. Strictly any claim for breach of the Public Contract Regulations brought by an unsuccessful economic operator should proceed by way of action in the Chancery Division (see regulation 47 C and D). Procedural exclusivity has not been a topic of debate in this case, as there may be some overlap between an essential public law challenge to the terms of a tender and or exercise of public law discretion under it and an essential private law challenge for breach of the regulations. The time for starting both sets of proceedings is the same, and the court can always transfer to the matter to the appropriate Division of the High Court to prevent a procedural point stifling a case of merit. However the fact that this claim has been heard in the Administrative Court should not be read as encouragement to others to issue proceedings in the wrong place and the wrong originating process.
34. In the light of the argument about the ability to commence proceedings in the Chancery division as of right I am prepared to grant permission to bring judicial review but this application is dismissed.