England and Wales High Court (Technology and Construction Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		26th July 2012

 


Mr Justice Akenhead:

1. 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

2. 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.
3. 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.
4. 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."

5. 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…"

6. 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…"

7. 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.
8. 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..."

9. 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 costs that may arise from the requirements for them to comply with the specific obligations detailed in the contract attached at Annexe 1 and attendant schedules and appendices…"

10. Paragraph 9.5 was entitled "Bid Preparation" and Paragraph 9.5.1 entitled "Costings" contained the following:

"The Council will accept no caveats to proposals or variant bids and no liability for any increased costs as a result of changes to Tenderers' arrangements or assumptions they may make in the course of, as a result of or following this procurement exercise."

11. Paragraph 10.4 identified the overall weightings to be given in the evaluation of the tenders; 70% of the overall score was to relate to the Tenderer's "Technical Proposal (Quality and Delivery)", covered by Form F whilst 30% was by reference to the Pricing Schedule, Form G. This was followed by these words:

"If we are unsure about any of the responses you have given to questions in Form F ["Technical Proposal (Quality and Delivery)"], we may clarify these with you. Please make sure there is someone available to answer any questions during the evaluation period. This will be by e-mail…"

12. Appendix 1 made it clear by Clause G4.1.6 that the Provider (the successful Tenderer) was "wholly liable for all redundancy costs that the Provider incurs after any TUPE transfer, including any pension strain costs that may arise on redundancy."
13. The Confidentiality Agreement which was signed by Turning Point indicated that the purpose of the agreement was "to pass to the Recipient details as to the staff who currently provide the Services in order that the Recipient may put together a full, completed and accurately priced tender to be submitted to the Disclosing Party".
14. On 20 December 2011, the Council posted a CD-ROM to the tenderers including Turning Point which contained TUPE information which was received by Turning Point by the following day. This contained a list of the employees who were subject to transfer. Each employee was given a number and no names were given. It identified the date from which each such employee had had continuous service, the contracted weekly hours, the salary, whether there was a car allowance and lease company car details, other allowances paid, any other benefits in kind, the name of the pension scheme and pension type and whether the individual had private health insurance. Additionally there was a separate table which identified a number of different job types and there were, whether they were admin/server support, nonclinical, manager or clinician.
15. Turning Point submitted 20 questions seeking clarification and, indeed, other tenderers submitted a further 70 questions. The arguably material questions and the Answers provided by the Council on 19 January 2012 were:

Question No	Question	Answer
1	Can commissioners indicate which element of provision staff are already engaged upon by line and include more detail in cases that appear more generic e.g. are care coordinators responsible for alcohol or drugs	This is not considered to be a clarification question but a request for further information. Further TUPE information should be supplied during transition to the successful Tenderer by the transferor. Tenderers may wish to request further TUPE information from the existing providers. A list of current providers was included in the needs [analysis] issued with the PQQ and ITT.
2	Can commissioners indicate the locations that each staff member is currently based by individual.	All staff considered by their current employer as likely to be eligible to transfer under the provisions of TUPE are included in the TUPE data distributed by the Council. Identification of individuals will not take place until commencement of the TUPE process.
18	Could we also request the dates of birth for all the individuals on the TUPE list	Please see answers 1& 2 above.
19	Could we request what the employee and employer contributions are from the LGPS, Friends Provident, Aviva and Legal & General?	Please see answers 1& 2 above
23	If additional TUPE queries arise after the 16th January, will we have the opportunity to raise these before the tender submission deadline?	No further clarification on any issues will be permitted after 2 pm on 16th January
26	Could you please match specific job roles to the information on the TUPE list and also indicate which service and location each person on the TUPE list is working from?	Please see answers 1& 2 above
38	Please see attached written request for further information we need relating to TUPE and Pensions. Please also note that we are not submitting this as a clarification question, but rather as a request for essential information which we believe should have been previously supplied.	Please see answers 1& 2 above. In regard to TUPE, we have supplied all the information we are permitted to at this stage and have been guided by our legal department, HR and Data protection officer.
76	Please can you inform us of the DOB of every employee on the TUPE list? (this is so we can calculate redundancy costs	Please see answers 1& 2 above
77	Please can you send us the redundancy policies that apply to the staff on the TUPE list? Is this/are these contractual policies?	Please see answers 1& 2 above

In fact as presaged in the answer to one question (not set out above), the Council e-mailed to tenderers on 25 January 2012 additionally a Pensions Information Memorandum (about which little of substance turns).

16. The evidence of Turning Point which I accept for the purpose of the current application was that there was great concern internally during the tender period about the adequacy and completeness of the TUPE information which was not assuaged by the answers given to tenderers' questions. Ms Eliasson says that Turning Point believed that the information was incomplete and presented in a way which made it extremely difficult to use to make accurate estimations of likely payroll, redundancy and pension costs. She says that a critical failure on the part of the Council was not to provide information in such a way as it was possible to match job titles to individuals' salaries and benefits; she put it another way saying that the key problem was that it was not possible from the information as formatted to assess which employees were engaged in which jobs. She was not able to calculate redundancy for some 49% of the non-NHS staff. Furthermore the information did not provide a full explanation of benefits and entitlements to each employee and whether or not those benefits would survive a TUPE transfer. She recommended and drafted the 20 questions (Nos.1- 20). She was surprised with the answers provided and she had never experienced someone like the Council being so unwilling to provide basic TUPE information and she was not convinced by the explanation in the answer to Question 38. She believed that it was normal to provide full information without identifying individuals. She found it inappropriate that a tenderer would be referred to incumbent providers for further details in a situation where the Council was unable to provide further information. She said that it is not normal for tenderers to approach incumbents directly and as an incumbent in other areas Turning Point would not release employee data when requested.
17. Mr Swarbrick, the Chief Financial Officer of Turning Point, became aware of the tendering process and other difficulties in obtaining what others considered in relation to obtaining sufficient pensions and TUPE information. He became directly involved on the very last day that the bid was due to be submitted. He was not initially aware that caveats to the tender were not allowed and, after several drafts which never went to the Council, he approved the wording in relation to pensions and redundancy which went into the tender (for which see below).
18. Turning Point submitted its tender dated 9 February 2012 which was received by the Council on 13 February 2012, within the specified time. The key part of the tender for these proceedings was in the Pricing schedule. The tenderers were required in Table A to price various services: Single Assessment and Co-ordination System, Low Intensity Interventions and Outreach, Structured Psychosocial Interventions and Clinical Interventions. There was against each service a Narrative box to be filled in by the tenderer with a quoted annual price. At the bottom of the Table against the words "Total annual charge to provide the services specified in the contract", the total of the sums credited against the sets of services was to be put. Turning Point's was £8,183,285. In the Narrative box at this point in Table A, Turning point wrote as follows:

"Please Note:

The bid submitted does not include any costs relating to historic local Government pension scheme shortfalls as we have assumed that an indemnity will be provided by Norfolk County Council.

Due to a lack of full and complete TUPE information, it is assumed that the restructure of staffing will be achieved through natural wastage and therefore we have assumed no redundancy costs. If redundancies were to occur, we would wish to enter into further discussions."

It is this wording which gives rise to much of the current dispute between the parties. I will refer to it as "the Note".

19. There had been some clarification sought by the Council from Turning Point on 1 March 2012 but it is common ground that this related to the quality matters rather than to pricing or the Note.
20. Mr Collier, the Head of Procurement at the Council, had a meeting with colleagues on 9 March 2012 (a Friday) to consider whether the Note constituted a qualification. They considered that the first part of the Note relating to pensions had no practical effect because Turning Point would in any case have no liability for past Local Government Pension Scheme deficits. They considered the ITT and provisionally formed the views that it was a qualification or a caveat and that the tender should be rejected on that ground. A meeting on the following Monday took a final decision that the tender should be rejected on that ground.
21. By a letter sent on 12 March 2012, the Council informed Turning Point that it had not been successful and that Norfolk and Suffolk NHS Foundation Trust was the winning tenderer with an overall score of 65%. The Council explained that it had excluded Turning Point's tender because it contained a qualification by way of the Note. Turning Point responded on 19 March 2012 complaining that the information provided during the tender was incomplete, that there was no opportunity following receipt of the answers to questions to seek further clarification and that the decision to disqualify Turning Point was unfair and contrary to the Regulations. The Council replied on 21 March 2012 denying the complaints but also confirming that, had Turning Point submitted an unqualified annual price of £8,183,285, it would have been the successful bidder. On 27 March 2012 Turning Point's solicitors replied indicating that it would challenge the proposed award.

These Proceedings

22. The Claim was issued on 28 March 2012 and the proceedings were served on 30 March or 2 April 2012. The Particulars of Claim dated 12 April 2012 recite the history, broadly set out above. It positively pleads that the information provided at the tendering stage was wholly inadequate and a list of information that should have been provided is set out at Paragraph 26 including dates of birth, the match between specific job roles/locations and the information given, the redundancy policies of existing providers and the like.
23. Paragraph 42 in addition to the case based on the Public Contract Regulations 2006 (as amended) pleads as follows:

"Further, by reason of the tender documentation and by the Defendant inviting the Claimant to tender and the submission of its tender by the Claimant, there arose between the Claimant and the Defendant an implied contract. In so far as is material, the terms of the said implied contract required the Defendant to (i) act fairly towards the Claimant in relation to the nature and application of the specified procedures in respect of the tender and in relation to the information it provided the Claimant; (ii) act fairly towards the Claimant in relation to the assessment of its tender in accordance with the stated award criteria; and (iii) act fairly towards the Claimant in relation to the evaluation of the tenders in a uniform and reasonable manner in accordance with the procedure established by the tender documents."

24. There are seven allegations of breach of the Regulations and of these implied terms pleaded at Paragraph 43;

"(1) In breach of its duty of transparency, the Defendant failed in the ITT or associated documents to provide the Claimant with the necessary and adequate TUPE and Pensions information required to permit it to prepare its tender submission as part of the tender process;

(2) Further in breach of its duty of transparency, the Defendant failed or refused to provide such information in response to specific requests for clarification issued by the Claimant and other tenderers and failed to provide any such replies to the requests for clarification until 19.1.12;

(3) Further in breach of its duty of transparency, the Defendant's process explicitly excluded the Claimant from submitting any further requests for clarification on TUPE and Pensions issues after 16.1.12, despite the fact that its initial response to the requests for clarification was not issued until 19.1.12;

(4) In breach of its duties of non-discrimination and equal treatment between tenderers, in failing to provide such information, the Defendant discriminated in favour of the incumbents service providers, which already possessed some or all of the required information;

(5) In the evaluation of the Claimant's tender, the Defendant committed a manifest error of assessment in determining that the tender price was qualified with the result that the tender had to be rejected in its entirety, despite the fact that on a proper evaluation of the tender, the Claimant would have won the contract;

(6) In breach of its duties of transparency, objectivity and proportionality, and acting unfairly and unreasonably the Defendant wrongly decided that it was obliged to reject the Claimant's tender;

(7) In breach of its duties of transparency, objectivity and proportionality, and acting unfairly and unreasonably the Defendant decided to reject the Claimant's tender, without seeking clarification from the Claimant as to the proper meaning of the narrative information included in Table A of its Form G Pricing Schedule."

25. A Defence was filed by the Council dated 10 May 2012 which asserted that it was not at fault with regard to the completeness or adequacy of the information provided. It asserted that the Note was a qualification or caveat or was otherwise not in compliance with the ITT. It asserted that the proceedings were too late and should have been brought within 30 days of when Turning Point either did or should have become aware of the inadequacies (if any) in the tender information, that is, more than 30 days before the proceedings. A Reply was served on 29 May 2012 in which the Defence was put in issue; so far as the timing of proceedings was concerned, it asserted that the 30 day time period can only have begun on or after 12 March 2012 when the Claimant was first notified that it had been disqualified; it more positively asserted that time only began to run on 21 March 2012 when, it was argued, that the Defendant complied with its general duty of transparency. It also sought in the alternative an extension of time if one was required.
26. On 30 May 2012 the Council issued its application to strike out the Claim either because it was brought out of the time under the Regulations or it had no prospect of success. I permitted the Defendant to amend this to add an application for summary judgement.

The Law

27. It is common ground that striking out should only happen in plain and obvious cases; in developing areas of the law, it has been said that it can be highly desirable that the facts be found first. The corollary of this latter point is that one can consider a striking out application on the basis of the facts as put forward by the party whose case or defence as the case may be is being sought to be struck out. The test for summary judgement is no real prospect of success.
28. Relevant parts of the Public Procurement Regulations (2006) (as amended) are:

"4.—(1) In these Regulations, an "economic operator" means a contractor, a supplier or a services provider.

(2) When these Regulations apply, a contracting authority shall not treat a person who is not a national of a relevant State and established in a relevant State more favourably than one who is.

(3) A contracting authority shall (in accordance with Article 2 of the Public Sector Directive)—

(a) treat economic operators equally and in a non-discriminatory way; and

(b) act in a transparent way.

47D.—(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) and (4), 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 for starting the proceedings had arisen…

(4) The Court may extend the time limits imposed by [this regulation]… where the Court considers that there is a good reason for doing so."

29. There has been some authority on limitation period culminating primarily in the Court of Appeal Decision in Sita UK Ltd v Manchester Waste Disposal Authority [2011] EWCA Civ 156. This was reviewed in a decision of this court, Mermec Ltd v Network Rail Infrastructure Ltd [2011] EWHC 1847 (TCC). These cases referred to the un-amended 2006 regulations which had a three-month limitation period but are of general relevance in any event. In the Mermec case, the Court reviewed and set out the relevant parts of the Sita decision:

"17. The impact of the provisions of Paragraphs 45D is that an economic operator such as Mermec, if it wishes to secure any of the remedies allowed by other provisions in Paragraph 45, has to commence proceedings within the time limit. The comparable provision in the Public Contracts Regulations (Regulation 47D) has been reviewed in Sita UK Ltd v Greater Manchester Waste Disposal Authority [2010] EWHC 680 (Ch) by Mr Justice Mann; he decided that the "promptness" test contravened the provisions of Directive 89/665. In effect he decided that the time period for the institution of proceedings was to be considered as three months from the time when the claiming economic operator knew or ought to have known of the alleged infringements of the Regulations, subject to any extension of that period. The Sita case… has since been upheld in the Court of Appeal which reviewed a number of authorities including the European Court of Justice decision in Uniplex (UK) Ltd v NHS Business Services Authority [2010] 2 CMLR 47 to which Mr Justice Mann had had regard. Lord Justice Elias, with whom Lord Justice Rimer agreed, went on:

"19. At the heart of this case lies the question: what degree of knowledge or constructive knowledge is required before time begins to run? The knowledge must relate to, and be sufficient to identify, the "grounds" for bringing proceedings, as it is expressed in regulation 32(4)(b). The Directive does not use that word but instead Article 1 speaks of taking proceedings rapidly against a decision involving an "infringement" of Community law. The concept of "grounds" in the regulations must be read consistently with that concept of "infringement", as the judge below recognised (para 127). So the question becomes: when is the information known or constructively known to the appellant sufficient to justify taking proceedings for an infringement of the public procurement requirements?

20. Some assistance in answering this question can be gleaned from the Uniplex decision itself. The ECJ said this:

"30) However, the fact that a candidate or tenderer learns that its application or tender has been rejected does not place it in a position effectively to bring proceedings. Such information is insufficient to enable the candidate or tenderer to establish whether there has been any illegality which might form the subject-matter of proceedings.

31) It is only once a concerned candidate or tenderer has been informed of the reasons for its elimination from the public procurement procedure that it may come to an informed view as to whether there has been an infringement of the applicable provisions and as to the appropriateness of bringing proceedings."

21. This reflects the approach of the Advocate General in that case who observed that time should run from the date when an unsuccessful bidder had been told the "essential reasons" why their bid had failed. The Advocate General observed that this would normally be from the date when the tenderer was sent a summary of the relevant reasons - a requirement which the Directive, following an amendment in 2007, now requires.

22. Plainly, the ECJ is drawing a clear distinction between the reasons for a decision and the evidence necessary to sustain those reasons. It does not envisage that the prospective claimant should be able to wait until the underlying evidential basis for the reasons is made available. To put it in the language of the regulations, there is a difference between the grounds of the complaint and the particulars of breach which are relied on to make good those grounds. Once the prospective claimant has sufficient knowledge to put him in a position to take an informed view as to whether there has been an infringement in the way the process has been conducted, and concludes that there has, time starts to run.

23. But what degree of knowledge is sufficient to provide that informed view that a legal claim lies? That depends upon how certain a case should be before a party is expected to take proceedings. Is a claimant expected to initiate proceedings once there is an arguable case, a reasonably arguable case, a strongly arguable case, or even a certain case? He may have knowledge sufficient to enable him to conclude that he has an arguable case but it may not be sufficient to enable him to take an informed view as to whether it is a strong case. So if the latter test is the right one, time will not begin to run until he acquires further knowledge which enables him to take an informed view about that. In my judgment Uniplex does not assist in determining that question. It is true that in answer to the first question it says that time runs from when the claimant "knew or ought to have known" of the infringement. But I do not believe it was thereby intending to state that the claimant is entitled to be certain that there is an infringement before taking proceedings. The issue the ECJ was considering was simply whether time ran from the date of the (alleged) infringement or the date of actual or constructive knowledge about it. The Court was not addressing an argument of how strong the evidence of infringement has to be before time starts to run, and I do not think it engaged with that question.

24. In the domestic context this was a matter that was considered by the House of Lords in Haward & Ors v Fawcetts (a firm) [2006] 1 WLR 68 which involved a claim for damages in a latent damage case where section 14A of the Limitation Act 1980 applied. Lord Nicholls, in a characteristically succinct formulation, described the degree of knowledge required to bring a claim in the following way (para 9):

"'knowledge'" does not mean knowing for certain and beyond possibility of contradiction. It means knowing with sufficient confidence to justify embarking on the preliminaries to the issue of a writ, such as submitting a claim to the proposed defendant, taking advice, and collecting evidence; suspicion, particularly if it is vague and unsupported, will indeed not be enough, but reasonable belief will normally suffice".

25. He added that "it is not necessary for the claimant to have knowledge sufficient to enable his legal advisors to draft a fully and comprehensively particularised statement of claim". Lord Nicholls added that one should ask in broad terms whether the claimant had knowledge of the facts on which his complaint is based.

26. In these proceedings Mann J adopted a test which was arguably more favourable to the appellant. He formulated it thus:

"the standard ought to be a knowledge of the facts which apparently clearly indicate, though they need not absolutely prove, an infringement."

30. I have no doubt that this formulation that time should not run until the claimant knows that he has a real likelihood of success puts the test too high, and there is no authority supporting it. It appears to be a complaint that knowledge of facts which, to use the judge's words, clearly indicate an infringement will not be enough to set time running. I agree with Ms Rose that this analysis confuses the detailed facts which might be deployed in support of the claim with the essential facts sufficient to constitute a cause of action. Mr Bowsher's approach would undermine the principle of rapidity which lies at the core of these provisions."

18. Elias LJ also confirmed that the proper test for considering whether in effect a claim for breach of the Regulations may be struck out is that the court must be satisfied that the claim is bound to fail as a matter of law and/or fact on limitation grounds. In effect the Court of Appeal held that time starts running when the tenderer has sufficient information to commence proceedings (see for instance Paragraph 37); the Court applied the test put forward by Mr Justice Mann, set out in Paragraph 26 of Elias LJ's judgement. It follows from Paragraph 30 that time does not start to run from the time that legal advice has or should reasonably have been taken; broadly, the claimant must have knowledge of the basic facts which clearly indicate an infringement of the Regulations. One must bear in mind that the claiming party has time within the allotted three months to issue proceedings and that should be more than sufficient for it to take legal advice and formulate its written claim.

19. This echoes the earlier Court of Appeal decision in Jobsin Co UK PLC v Department of Health [2003] EWCA Civ 1241 in which Lord Justice Dyson said:

"33…Although the maxim "ignorance of the law is no excuse" is not a universal truth, it should not in my view be lightly brushed aside. Regulation 32(4) specifies a short limitation period. That is no doubt for the good policy reason that it is in the public interest that challenges to the tender process of a public service contract should be made promptly so as to cause as little disruption and delay as possible. It is not merely because the interests of all those who have participated in the tender process have to be taken into account. It is also because there is a wider public interest in ensuring that tenders which public authorities have invited for a public project should be processed as quickly as possible. A balance has to be struck between two competing interests: the need to allow challenges to be made to an unlawful tender process, and the need to ensure that any such challenges are made expeditiously. Regulation 32(4)(b) is the result of that balancing exercise. It may often be the case that a service provider is not aware of the intricacies of regulations such as the 1992 regulations, and has little or no understanding of how they should be interpreted. If ignorance of such matters were routinely to be regarded as a good reason for extending the time for starting proceedings, the clear intent of regulation 32(4)(b), that proceedings should normally be started promptly and in any event not later than three months after the right of action first arose, would be frustrated."

30. The Mermec case also provided some guidance on extension, the Court dealing with the extension request at Paragraph 23:

"The main remaining issue is whether or not there is some good or arguable reason why there should be an extension of time in effect to bring the service of the Claim on 30 December 2010 within time. I do not consider there is any such reason:

"(a) There is no explanation from Mermec as to why the Claim could not have been drafted let alone served weeks before it was served.

(b) It is perhaps unhelpful to try to give some exhaustive list of the grounds upon which extensions should be granted but such grounds would include factors which prevent service of the Claim within time which are beyond the control of the claimant; these could include illness or detention of the relevant personnel. There must however be a good reason and none is advanced by the Claimant in this case.

(c) It is said that the delay was only some six or seven days and that there should be an extension for such an insignificant period because it is a relatively short delay. However, there is no point in having a three-month period if what it means is three months plus a further relatively random short period.

(d) The evidence is however that the Particulars of Claim were drafted and ready to be served on 22 December 2010 which of course would, just, have been within the three months period. No explanation has been offered as to why it was not served if necessary by hand on that date or even shortly before . There clearly was no problem preventing Mermec or its advisers from articulating a claim and serving it within a few weeks of 23 September 2010. Even if they hoped to get more information from Network Rail, it was clear from the latter's letter of 28 October 2010 that no further information was provided. Certainly, all the basic facts relied upon in the Particulars of Claim were known well before them.

(e) It was said by Counsel for Network Rail that if, as appears at least possible, the Claim was served late as a result of some error on behalf of Mermec's legal team, Mermec will have a claim for professional negligence against its lawyers and that should militate against the granting of any extension. I would rather not speculate as to whether there was any culpable carelessness on the part of the lawyers. There are several possibilities, one of which is professional negligence on behalf of the lawyers. Another is that there was a lack of urgency on the part of Mermec in the October to December period. As there is no explanation for the delays, that itself is reason enough to undermine any entitlement to an extension of time. Limitation periods are there for a purpose and extensions of limitation periods should be for good reason; there is no obvious good reason which has been floated in this case by Mermec, which is telling."

31. In Mears Ltd v Leads City Council [2011] 40 EWHC (TCC), Mr Justice Ramsey at Paragraph 70 of his judgement gave a useful summary of propositions that could be derived from previous decisions on when time started to run on Regulation 47:

"(1) The "date when grounds for the bringing of the proceedings first arose" will depend on the nature of the claim in the proceedings.

(2) The grounds for making certain claims may arise before there has been any decision to eliminate a tenderer from the procurement process or not to award a contract to a tenderer.

(3) Where the claim is based on infringement of the Regulations occurring during the procurement procedure and before any decision has been taken to eliminate a tenderer or award a contract to another tenderer, the date when the grounds arise will depend on when the claimant knew or ought to have known of that infringement.

(4) Where a claimant knows or ought to know of the infringement, the grounds of bringing the proceedings will then arise. They do not arise only when there has been a decision to eliminate a tenderer or award a contract to another tenderer.

(5) Where the claim is based on grounds which arise out of a decision to eliminate a tenderer or award a contract to another tenderer then those grounds will only arise when the tenderer knew or ought to have known of the infringement and this will generally depend on the tenderer being given the reasons for the decision.

(6) The requirement of knowledge is based on the principle that a tenderer should be in a position to make an informed view as to whether there has been an infringement for which it is appropriate to bring proceedings. There is not a separate requirement relating to the appropriateness of bringing proceedings."

32. In relation to implied contracts in public procurements, there have been some relevant authorities. In JBW Group Limited v Ministry of Justice [2012] EWCA Civ 8, Elias LJ in the leading judgement said this:

57. The argument here was that by offering the contract out to tender, the MoJ was impliedly entering into a contract which would oblige it to treat all tenders equally and with transparency and in accordance with the terms of the tender document.

58. Mr Knox accepted that if he had succeeded in establishing that there was a service contract, this would add nothing to his case. It would then be unnecessary to imply any contract. Initially he suggested that even then the implied contract argument might entitle him to bring a claim for six years rather than within the much stricter three month period permitted under the Directive. However, in reply he resiled from that position and conceded that it would be inconsistent with the purpose of the Directive to imply any such contractual right.

59. That concession was, in my view, rightly made and is consistent with the decisions of two first instance judges, Morgan J in Lion Apparel Systems Ltd v Firebuy Ltd [2007] EWHC 2179 (Ch), para 212 and Flaux J in Varney and Sons Waste Management Ltd v Hertfordshire County Council [2010] EWHC, 1404 paras 232-235 citing Monro v HMRC [2009] Ch 69.

60. However if, as I have found, the Regulations are not applicable, the same argument cannot be advanced. I reject a submission of Mr Vajda that it would be illogical to find that an implied term can be excluded if the arrangement is analysed as a service contract but not if it is a concession. The reason it would be excluded in the first situation is that it is unnecessary and would, if implied, be inconsistent with the statutory scheme. Those arguments do not apply where the arrangements constitute a concession. Nor do I accept an argument he advanced, which was accepted by the judge below, that by excluding concessions from the scope of the Directive and hence the Regulations, the draftsman intended that provisions of a kind found in the Regulations positively ought not to apply to them. I would not be prepared to read the effect of the exclusion in that way. A tendering authority is not obliged to comply with the Regulations where a service concession is in play, but there is in principle no reason why it could not choose to do so and I do not see how it could be illegal for it to do so. The parties could expressly agree to contractual terms mirroring the Directive and the Regulations if they so wished, and therefore there is no reason in principle why implied terms could not cover that same ground. Having said that, the difficulties of implying terms akin to those found in the Regulations, terms necessarily premised on the assumption that this was the common intention of the parties, in circumstances where the MoJ has throughout been acting on the assumption that the Regulations did not apply, is obvious.

61. When considering the implied contract question, two issues arise for consideration: first, is there any implied contract? Second, if so, what is its scope? As to the first issue, I would be prepared to accept, in line with the well-known judgment of Bingham LJ, as he then was, in Blackpool Aero Club v Blackpool Borough Council [1990] 1 WLR 1195 that the MoJ would in principle be under an obligation to consider the tender. Also, contrary to the submissions of the MoJ, I would have no difficulty in implying that any such consideration should be in good faith. Mr Vajda contended that this was an obligation under public rather than private law, but I do not see why this should preclude the obligation arising in private law also. Indeed, if a tender is not considered in good faith, I do not think that it can sensibly be said to have been considered at all.

62. However, Mr Knox does not contend that there has been a breach of this limited duty. The question is whether the implied obligations can extend beyond that limited requirement to embrace the much fuller set of duties relied upon by Mr Knox. I see no conceivable basis for concluding that it can. There is simply no basis on which it can be contended that these terms necessarily have to be implied to give efficacy to the contract; and nor can there be a common intention that they should given that the MoJ has always been denying that the Regulations apply. Moreover, as Mr Vajda pointed out, the specific power conferred on the MoJ to depart from the terms of the tendering document is itself inconsistent with the EU principle of transparency which would require strict adherence to the published terms.

63. Mr Knox relied upon the fact that there are fundamental EU principles of transparency and equality, and he submitted that these would mould the nature of the implied term. However, I agree with Mr Vajda that there is no proper basis for assuming that EU principles can alter the way in which terms are implied at common law. It is common ground that these principles are not engaged as a matter of EU law, since there is no cross-border element in the arrangement. In effect Mr Knox is seeking to use the implied term as a means of expanding the reach of EU law and that is not, in my judgment, a legitimate exercise."

33. Mr Justice Flaux had considered the implication of a contract in public procurement in J Varney & Sons Waste Management Limited v Hertfordshire County Council [2010] EWHC 1404 (QB):

"232. In addition to its claim for breach of the Regulations, Varney contends that the ITT and Varney's response to it gave rise to an implied contract between it and the Council which included terms that the Council would give fair, reasonable and objective consideration to the tender. The same matters which are alleged to constitute breaches of the Regulations are said to amount to breaches of those terms of the implied contract. Varney does not seek to advance a different measure of damages and the only significance of this claim is that it is an attempt to get round the three month time limit for bringing a claim under Regulation 47(7). Since I have concluded that irrespective of that time limit, the relevant claims fail because there was no breach of the Regulations, the question of whether Varney has an alternative claim under an implied contract is wholly academic, since it inevitably follows that there was no breach of contract either. Accordingly, this alternative claim can be dealt with shortly.

233. In my judgment, there is no basis for the implication of this contract for two reasons. First, the Regulations create their own regime imposing duties on the Council in relation to any tender submitted. Given that legal regime, it is unnecessary to imply a contract and none will be implied. In the context of public procurement, albeit under the previous Regulations, in Lion Apparel Systems Ltd v Firebuy Ltd [2007] EWHC 2179 (Ch) Morgan J decided that there was no scope for the implication of a contract: see paragraph 212.

234. Second, it is well-established that the Courts will not enforce rights at common law which are inconsistent with statute. As Arden LJ put it in Munro v HMRC [2009] Ch 69:

"the authorities give clear guidance that if Parliament creates a right which is inconsistent with a right given by the common law, the latter is displaced. By 'inconsistent' I mean that the statutory remedy has some restriction in it which reflects some policy rule of the statute which is a cardinal feature of the statute."

235. In the present case, the relevant statutory provision, the Regulations, has a cardinal feature which is the need for prior notice before a claim is made and the relatively short period of time of three months within which the claim must be brought. In my judgment, there is no scope for the implication of a contract. As Morgan J said at paragraph 212 of Lion Apparel in the context of Regulation 32 of the 1993 Regulations, the predecessor of Regulation 47 of the 2006 Regulations:

"...given that Regulation 32 of the 1993 Regulations imposes important limits on a bidder's ability to take against [the authority] for breach of such obligations, I do not think it could possibly have been intended that those obligations would co-exist by way of a contract, where the limitations of Regulation 32 would not apply."

34. Turning Point's Counsel also relied upon the EC Court of First Instance decision in Tideland Signal Limited v Commission of the European Communities [2002] ECR II-3781 which was concerned with whether a contracting authority should or could reject a tender without seeking clarification in circumstances in which the tender contains either simply a formal error or there was an ambiguity. The Court held in Paragraph 37 that a power to seek clarification in the ITT:

"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 committee 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 a tender in 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 the tender without exercising its power to seek clarification. A decision to reject a tender in such circumstances is liable to be vitiated by a manifest error of assessment on the part of the institution in the exercise of that power"

In my view, the issue as to whether clarifications should be sought by the relevant contracting authority before rejecting tenders will depend on all the circumstances, including but not limited to whether there is an express or implied power given in the ITT for it to seek clarifications from individual tenderers, whether it is fair on all the tenderers for a clarification to be sought from only one tenderer rather than all and whether the seeking of such clarification from the relevant tenderer may enable it to alter its tender materially.

Discussion

35. The issues in the case can be summarised as follows:

(a) Whether all or any of the allegations of breach of the Regulations as against the Council are barred by the 30 day provision in Regulation 47D?

(b) If so, is the Claimant entitled to an extension of time to overcome such a bar?

(c) Did the Note qualify or caveat the tender or otherwise evidence non-compliance with the ITT?

(d) If so, should the Council have sought clarification from Turning Point before rejecting its tender and provisionally accepting someone else's?

(e) Was there an implied contract? If so what were its terms and does it add a claim which is not time-barred?

36. I have formed the clear view that the allegations relating to breaches of the Regulations or Community law obligations generally as to the inadequacy or incompleteness of information provided to tenderers are barred by the 30 day statutory limitation period. My reasons are as follows:

(a) I proceed on the basis of the evidence which Turning Point itself puts forward. I therefore assume for the purposes of the application that the information provided relating to TUPE and pension provision was inadequate, although I make no finding about that.

(b) Turning Point itself through responsible staff knew and believed that the information was inadequate and incomplete and indeed, without it, it would have difficulty in tendering.

(c) It knew and believed this when it submitted the questions which it did between 21 December 2011 and 16 January 2012, when it received the answers to its and the other tenderers' questions and, indeed, when it submitted its tender. The Note itself refers to "a lack of full and complete TUPE information". Its witness evidence fully bears this out.

(d) Thus, Turning Point must have had knowledge of the basic facts which clearly indicated an infringement of the Regulations with regard to the basic inadequacy or incompleteness of the information provided by no later than the date upon which it submitted its tender (9 February 2012).

(e) The allegations made in Paragraph 43(1) to (4) of the Particulars of Claim are barred by the 30 day limitation period. The first three of these allegations relate to complaints about inadequate information being provided up to 19 January 2012, which is some 10 weeks before proceedings were served. The fourth allegation is a compendious allegation relating the failure to provide the information identified in the first three allegations to discrimination in favour of the incumbent service providers.

(f) The only way in which Turning Point can seek to get around this problem is to say that there was a continuing duty on the Council to provide information up until the time that it made a decision on the tenders and communicated that to Turning Point. There is no expressed obligation on the part of the Council to provide such information. There was no concomitant implied obligation either; such implication does not arise as a matter of statute or of contract (even assuming there was an implied contract) because it is not necessary to imply such an obligation, at the very least in the period after the submission of the tender. The mutual expectation contractually or legally can have only been that no such further information would be provided because the period after submission of the tenders would be taken up by the Council in evaluating the tenders. If further material information could be provided in this latter period, it would or at least could realistically inevitably lead to the revision of tenders and the re-commencement of a tendering exercise which was never envisaged within the ITT.

(g) Mr Williams QC argued that the answer to Question 38 suggested only an inability to provide information "at this stage" and that this left the door open to the Council to provide further information to tenderers up to the award of the contract. That answer cannot be read in that way by any stretch of the imagination. The overall answers and indeed the ITT itself makes it clear that full information will only be provided to the "successful bidder" and that entity would only emerge after the selection and award process had taken place.

37. The answer to the first issue is therefore "Yes". One then has to consider whether Turning Point should be entitled to an extension of time. I do not consider that there is a good reason within the meaning of the Regulations to extend time. The reality is that Turning Point and it's responsible officers were aware from January 2012 of the inadequacy and incompleteness of the TUPE and pensions information (as they saw and believed it to be). They knew that by the time of tender submission those complaints had not been remedied. The grounds relied upon are that the duty to provide such further information was a continuing one (which it was not). It is more than likely that Turning Point did not consider that it was a continuing duty which ran beyond the tender submission date at the latest; a continuing duty of that sort is not pleaded and is not even incipiently supported in its evidence. The final argument for an extension is that only a short period (put at 14 days) is sought and that it would be reasonable and proportionate for it to be allowed. That can not in itself be a good reason because the 30 day period is clearly defined and, if statutorily what was intended was 30 days plus a reasonable proportionate and short period, that is what the legislators would have written. A good reason will usually be something which was beyond the control of the given Claimant; it could include significant illness or detention of relevant members of the tendering team. Accordingly it follows that the answer to the second issue is "No".
38. The next two issues deal with the ramifications of the Note. It is accepted, properly, by Ms Holmes for the Council that if the Note was not a qualification or a caveat or otherwise evidenced a non-compliance with the ITT, there would be a breach of the Regulations; this is because the Council would then have awarded the proposed contract to the party which in truth came second and the Council would have discriminated against Turning Point by wrongly rejecting its tender.
39. I have formed the clearest view that the Note was a qualification or at the very least a caveat. My reasoning is as follows:

(a) One has to construe or interpret the Note in effect as an actual or prospective contractual document. It matters not what private non-communicated thoughts Mr Swarbrick or anyone else at Turning Point thought the words meant; this is a basic tenet of contractual interpretation. One can test it the other way round: if Mr Swarbrick thought privately that it was a qualification (but it was not, properly interpreted), that would not justify the Council treating it as a qualification. In any event, the ITT itself made clear by Paragraph 19 of the "Important legal notice" that all "responses and submissions provided by the Tenderer will form part of the contract should the Tenderer subsequently be successful…"

(b) A practical way of considering the Note therefore is on the basis that, if Turning Point's tender had been accepted, the Note would have been incorporated in the subsequent contract. One can and should then analyse the wording on that basis.

(c) It is not inappropriate to proceed on the basis that the Note must have been intended (judged objectively) to mean something, put another way it was not mere surplus verbiage. I say this only in relation to the second part of the Note which relates to redundancy because the first part seems to have had no material effect and is more than arguably (as it turned out) mere verbiage.

(d) Apart from saying that there was a lack of TUPE information, Turning Point was putting forward an assumption that the restructuring of staffing would be achieved through natural wastage. If that assumption had been accepted, it would have become a common and accepted assumption and it would have been impossible contractually for the Council to argue otherwise. The contractual assumption would also have been: "no redundancy costs" have been allowed for.

(e) It is clear that the expression "if redundancies were to occur, we would wish to enter into further discussions" is unqualified in relation to what those discussions were to be about. There would be little or no point in practice, particularly in the pricing section of the tender, to put this in unless the further discussions were to be about who should pay for the redundancy costs. It is argued that this was the only place in the tender in which a note like this could be put. I disagree: there was plenty of room in Form F which would deal with the technical proposal and where Turning Point had the right to submit some 40,000 words of their own explaining what they were going to do and how. It was suggested that the discussions would simply be about the practical logistics of any given redundant person but again there would be no need to put that in the pricing section. It is clear, judged objectively, that the discussions would be about redundancy costs and who should pay for them.

(f) Properly construed, this wording clearly means that the contract price allows nothing for redundancy costs on the common and agreed assumption that every single redundancy would be achieved through natural wastage (presumably either by retirement or resignation of employees). As a matter of construction or at least by implication, that would mean that the Council would be responsible for the cost of redundancies that followed the transition of employees from their former employer to the successful tenderer. It would be considered that because Turning Point had not put any money in to the price for redundancies it would have put money in otherwise.

(g) In the alternative, it was certainly a caveat because there would be nothing to discuss if the financial and any other risks associated with subsequent or consequent redundancies were to remain entirely and exclusively with the tenderer.

(h) I do not consider that there was any other material non-compliance with the ITT. The fact that as such no money amount was included within the pricing for redundancy costs would be entirely, otherwise than through the Note, at the risk of Turning Point.

40. I do not consider that the Council should have sought clarification from Turning Point before rejecting its tender and provisionally accepting someone else's. The reasons are relatively obvious:

(a) There was a clear qualification or caveat to the tender. The ITT made it clear that there were to be no qualifications or caveats. That requirement was a perfectly fair, reasonable and common one because it is necessary often in both private and public procurement that comparable tenders are provided and, if parties contrary to such requirements can put in significant qualifications of which their competitors know nothing, that in itself produces a non-level playing field which in itself could well be contrary to the Regulations.

(b) There was no expressed entitlement within the ITT for the Council to go back to tenderers on the pricing schedule for clarification, albeit there was one in relation to Form F. This is not surprising because the pricing schedule was not unduly complex and it would generally be inappropriate to go back to tenderers on prices or qualifications as to prices.

(c) One therefore needs to consider whether there is an implied obligation or entitlement on the Council to seek clarification as to whether a tenderer will withdraw a qualification or caveat to the prices quoted. I do not consider that there is such an implication. Necessarily, the Council would in practice only be able to go back to the tenderer which had put in such a qualification and the exercise would run the risk of non-transparency because the tenderers who had not put in qualifications would be kept in the dark and not permitted to adjust or alter their tenders. A second problem is that it might well indicate at least by implication to the qualifying tenderer that it was under serious consideration such that it might well suspect that if it withdrew the qualification or caveat it might well secure the job. A further problem is that if the Council did go back to such a tenderer, that could lead to the tenderer seeking to amend its quoted pricing upwards which would or could completely disrupt the tendering process; that would be unsatisfactory.

(d) I consider that there is a difference to be drawn between a real qualification or caveat to a tender, which is put in voluntarily and on a commercial basis, and a formal or obvious error in the tender such as arose in the Tideland case. For instance, a transposition, formatting or obvious arithmetical error might entitle a contracting authority to go back to a tenderer simply to ask it whether it acknowledges and wishes to correct such errors.

41. The final issue relates to the implied contract. I can deal with this issue relatively simply. There is an arguable case (without deciding the point) that there is an implied contract. The "Important legal notice" in the ITT says at Paragraph 2 that the Council does not make any binding commitment to tenderers "other than to abide by its statutory obligations and the express terms of this Important Legal Notice." This wording at least suggests that there is a commitment to abide by such obligations and express terms. However, the only undertaking of any relevance to the current case is the obligation to abide by the statutory obligations, encompassed at least by the Regulations. There is no room therefore for any implication of any other terms such as those pleaded by Turning Point such as the duties to "act fairly". Paragraph 2 expressly says that no other obligation shall be implied into any contract which may arise in relation to the conduct of the tendering exercise. It follows therefore that, if the implied terms relied upon by Turning Point can not and do not exist, the pleaded claim for breach of the implied contract falls to the ground. The incorporation of the statutory obligations would carry with it the restrictions imposed by statute in any event.

Outcome

42. It follows from the above that the Claim as put forward by Turning Point can not succeed even on the factual basis as put forward by it. Its Claim should therefore be struck out and judgment entered for the Council.