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England and Wales High Court (Technology and Construction Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Technology and Construction Court) Decisions >> Corelogic Ltd v Bristol City Council  EWHC 2088 (TCC) (18 July 2013)
Cite as:  EWHC 2088 (TCC)
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QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Strand, London, WC2A 2LL
B e f o r e :
| CORELOGIC LIMITED
|- and -
|BRISTOL CITY COUNCIL
Rhodri Williams QC (instructed by Bristol City Council Legal Services) for the Defendant
Hearing date: 10 July 2013
Crown Copyright ©
Mr Justice Akenhead:
"I am writing to advise you that your tender for the above contract has not been successful.
The award of this contract was concluded and ran as a further competition…and as such is not subject to the full rigour of the EU rules with regard to an Alcatel Standstill Period.
However…the Council intends to follow a standstill period for this particular further competition as it is deemed best practice to demonstrate that a transparent and fair process was followed…The stand-still period will therefore expire 1 April 2013.
The Council has decided to award this contract to Liquid Logic…
The scores for your tender and the successful tenderer are compared as follows:
[Liquidlogic scored 72.09% on the SOR and Pricing and 6.91% on the User Demo against Corelogic's 64.41% and 6.70% respectively]"
"This price for your tender was £994,965.00. (The price was for implementation and 7 year on-going costs. The price included the upgrade/fix/patch (managed service), and the discounted "bundle" pricing for 5 interfaces, as these were core requirements as stated in the tender documents. It also included your "goodwill" delay in charging support and maintenance costs.)
The price for the Liquid Logic tender was £868,075.00…"
The document runs on for several more pages explaining why Liquidlogic were stronger on different parts of the bids.
"1. How many users did you use for the pricing evaluation (750, 1000 or 1,250)?
2. Please can you provide full details of all components of our pricing that you took into account to reach the figure of £994,965.00 as we are unable to.
3 Please can you clarify the statement: "The price included the upgrade/ fix/ patch (managed service)"? Upgrades/ fixes/patches are included as standard under our Maintenance and Support agreement (Appendix V in our submission) and are therefore all covered by the support payment that we quoted (£15,510 pa for 750 users)."
"Despite your further requests for information, the Council would like to now reiterate it's position described within the latter sections of this letter, indicating that it feels it has fulfilled it's obligations under the principles of the standstill period, treated all bidders fairly and transparently and carried out the tender process as stated in the original ITT documentation.
Therefore, the Council will not be restarting the standstill period as a result of the latest email request for feedback from Corelogic and intends to conclude contractual arrangements with the winning bidder as planned (midnight 8th April). As previously indicated, the Council will offer an opportunity for a debrief once the standstill period has expired."
"1. We have been instructed by Corelogic in relation to the Tender and have been passed copies of your recent correspondence including your letters dated 22 and 27 March 2013 and 3 April 2013…Your letters suggest that you have provided what you consider to be sufficient information to fulfil your obligations to ensure a transparent and fair process.
2…Whilst Corelogic is grateful for the information provided as to why its bid was unsuccessful, we are writing to confirm our advice to Core logic that the information you have, to date, provided it is inadequate and does not comply with the obligations imposed upon the Council by the Public Contracts Regulations, as amended.. and the general EU Treaty principles of transparency, openness and non-discrimination.
3. The purported award decision notice issued on 22 March 2013 is incomplete and does not comply with the requirements of the Regulations. In particular, the Council has failed to provide sufficient information pursuant to Regulation 32 relating to the scores received by either LL or Corelogic, setting out the characteristics and relative advantages of the successful tender to enable Corelogic to understand properly the reasons for the Council's decision…
Flawed Award Decision Notice
6. The 2006 Regulations…provide as follows:
Regulation 32 - Information about contract award procedures…
7. The purported notice you have served fails to set out sufficient reasons to meet the requirements of Regulation 32 (2) (b).
8. The test as to what constitutes sufficient reasoning for the purposes of a decision notice and to satisfy Regulation 32 (2) (b) comprises two stages and was set out in the cases of Alstom… and the various decisions in the Dynamiki litigation…This requires contracting authorities to provide all information:
8.1 that would be necessary for the unsuccessful bidder to determine whether or not a decision is well founded; and
8.2 to enable that bidder to have sufficient information to be able to assert its rights before the Court.
9. It is simply not possible for Corelogic to do either of these things for the reasons set out below.
9.1 Corelogic has not been provided with the scores for SOR…
9.2 Corelogic does not know how it scored relative to LL…
9.3 Corelogic does not know the basis upon which it was scored in the "Total Cost of Ownership" section
9.3.1 In complete contrast to the detail provided by the Statement of Requirements Document for the "Fitness for Purpose" element of the Tender, the Council has failed entirely to provide any criteria or scoring methodology for the "Total Cost of Ownership" section of the Tender. It is entirely unclear as to how a bidder could receive full marks for this section, something which would affect how tenders are put together.
9.3.2 Corelogic has no idea why it received a weighted score of 37.75% or why LL was given 43.84% in comparison.
9.3.3 Corelogic has also not been provided with any information about the marks either it or LL received for this section.
9.3.4 In the circumstances, without further information from the Council, it appears that this section has been marked using undisclosed sub-criteria. Again, this constitutes a breach of the Regulations, in particular the requirement of openness, fairness and transparency…
9.4 Corelogic does not know what pricing elements of its bid were used by Bristol to arrive at the figure of £994,965 as being the total price of the contract
…9.4.2 Our client's own analysis of the contract price is set out below, which evidences that the TCO is significantly less than this for 750 users. [There then follows a table which shows this analysis which produces a total of £331,360].
9.4.3 This is highly relevant since, based on the above, and without prejudice to the deficiencies already set out in relation to the lack of scoring methodology for Pricing as set out above, it is highly likely that Corelogic would have been the winning bidder as you have already confirmed that LL's tender price was significantly higher than this, namely £868,075.00
9.5 The Council has refused to provide further information until the standstill period has expired
9.5.1 Our client has asked you for a de-brief and for further information in relation to pricing specifically. Please confirm that you will provide that in accordance with Regulation 32 (9).
16. Given the unfortunate position in which Corelogic finds itself, Corelogic requires the Council's confirmation, by 11am on Monday, 8 April 2013, that it will now comply with its statutory obligations and will not enter into a contract with LL but will instead:
16.1 provide a full response to the concerns identified above; and
16.2 confirm that it will extend the standstill period to 10 working days after it has provided the information requested above, so that Corelogic has the opportunity to consider this information and consider its legal position.
17. Given the short limitation periods applicable to procurement challenges, we will require the Council to provide its full response to the concerns set out in this letter by no later than 4pm on Friday, 12 April 2013.
18. If the Council fails to provide the above confirmations, by the deadline given above regrettably we will have to advise Corelogic to protect its position by issuing Court proceedings which will include a claim for ineffectiveness and the effect of which will be to suspend automatically the procurement process…"
"It is clear that your client has made assumptions about what the Council wanted. The Council wanted your client to provide prices which would enable it to make its own choices. The table you have used does not address the pricing issue sufficiently clearly, it ignores key elements of the package and shows that your client has ignored fundamental parts of its own bid… Appendix G shows the proper interpretation of your client's bid. The figure of £994,965 is based entirely on your client's tender…
An area where your client was significantly more expensive was the upgrades and releases. The Pricing Schedule…is explicit that the Council required a price for upgrades."
"The Claimant's claim arises out of a procurement process conducted by the Defendant for the award of a contract for the provision of an adult social care case management system ("the Contract"). The procurement was subject to the Public Contracts Regulations 2006 (as amended) ("the Regulations"). The Claimant was shortlisted as one of two bidders but was notified by the Defendant on 22 March 2013 that its tender had been unsuccessful and that the other bidder, Liquid Logic, had been successful. To date, despite requests, the Defendant has not provided sufficient reasons for this decision pursuant to Regulations 32 and 32A and has said it will not do so until after the expiry of the purported standstill, which the Defendant says expires at midnight on 8 April 2013.
The failure to provide reasons for the decision is a breach of Regulation 4(3) of the Regulations and/or enforceable EU law obligations, in particular, the principles of equal treatment, transparency and non-discrimination. The Defendant has further breached the terms of an express tender contract between it and the Claimant arising out of the same facts. As a consequence, the Claimant will suffer loss and damage.
In breach of its obligations pursuant to Regulations 4(3) and 19 (9) (d) the Defendant made manifest errors in its assessment of the Claimant's tender price. If the Defendant had correctly assessed the Claimant's price in accordance with the Claimant's tender, the Claimant's tender would have been evaluated as the best tender on the basis of the award criteria specified in the contract documents.
In breach of its obligations of transparency, the Defendant did not disclose to the Claimant the formula the Defendant used for translating prices into scores, and applied an undisclosed award criterion to the assessment of prices for the provision of upgrades.
The Claimant seeks an order setting aside the Defendant's decision to award the Contract to Liquid Logic and the suspension of the procurement process; an order restraining the Defendant from awarding the Contract and/or from continuing with the current procurement; a declaration that the Defendant was and is in breach of the Regulations, general Treaty obligations and principles and/or the terms of an express tender contract between the Claimant and the Defendant; alternatively damages for breaches of the Regulations, general Treaty obligations and principles and/or for breach of the terms of an express tender contract between the Claimant and the Defendant, together with interest thereon; such further or other relief as seems just and appropriate; costs."
"The Claim Form as issued alleges that the Defendant breached its obligations pursuant to the Public Contracts Regulations 2006 and wider EU public procurement law. The proposed amendment makes specific claims under those Regulations and law that the Defendant made a manifest error in its assessment of the Claimant's tender price, and failed in its obligations of transparency and equal treatment."
Mr Gollancz suggested that the amendments were simply clarificatory of the existing pleading.
"Whilst it is not accepted that the general wording of the Claim Form issued originally does not cover those points, the Claimant was advised to propose the amendments so that they could be read together with the Particulars of Claim. The amendments clearly arise from the same facts as the matters referred to in the original Claim Form…"
He said that neither amendments added "a new claim" but even if they did they arose "out of the same or substantially similar facts". It was not accepted that even if there were new claims limitation had expired.
"11… I am of the view that when following the relevant authorities, the grounds of claim should be particularised as far as possible based on the information known by the Claimant given the very short timescales to bring proceedings under Regulation 47(D) of the Regulations. For the avoidance of doubt, had I been instructed to draft the original claim form, I would have included specific reference to manifest error and lack of transparency through undisclosed evaluation criteria in order to give as much certainty and clarity as possible to the claim.
18. As a solicitor specialising in the area of EU public procurement law, I would regard it as best practice to set out these breaches [manifest error in calculating the bid price and the use of undisclosed evaluation criteria] explicitly in the Claim Form. This is the approach that I would take if drafting such a claim. This would of course be entirely consistent with the correspondence that had passed between the Claimant and the Defendant prior to the issue of the Claim Form in which those two breaches had been addressed…"
He went on to say that these two particular breaches had been at the core of the matters in issue between the parties before the Claim was originally issued and that the failure to provide requisite information was inextricably linked with the manifest errors more latterly asserted.
The Regulations and the CPR
"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.
(1) Subject to paragraph (13), a contracting authority shall, as soon as possible after the decision has been made, inform the tenderers and candidates of its decision to—
(a) award the contract; or
(b) conclude the framework agreement,
and shall do so by notice in writing by the most rapid means of communication practicable.
(2) Where it is to be sent to a tenderer, the notice referred to in paragraph (1) shall include—
(a) the criteria for the award of the contract;
(b) the reasons for the decision, including the characteristics and relative advantages of
the successful tender, the score (if any) obtained by—
(i) the economic operator which is to receive the notice; and
(ii) the economic operator—
(aa) to be awarded the contract; or
(bb) to become a party to the framework agreement, and anything required by paragraph (10);
(c) the name of the economic operator—
(i) to be awarded the contract; or
(ii) to become a party to the framework agreement; and
(d) a precise statement of either—
(i) when, in accordance with regulation 32A, the standstill period is expected to
end and, if relevant, how the timing of its ending might be affected by any and, if so what, contingencies; or
(ii) the date before which the contracting authority will not, in conformity with regulation 32A, enter into the contract or conclude the framework agreement.
47D. General time limits for starting proceedings
(1) This regulation limits the time within which proceedings may be started where the proceedings do not seek a declaration of ineffectiveness.
(2) Subject to paragraphs (3) to (5), such proceedings must be started within 30 days beginning with the date when the economic operator first knew or ought to have known that grounds for starting the proceedings had arisen…
(4) Subject to paragraph (5), the Court may extend the time limit imposed by paragraph (2) (but not any of the limits imposed by regulation 47E) where the Court considers that there is a good reason for doing so.
(5) The Court must not exercise its power under paragraph (4) so as to permit proceedings to be started more than 3 months after the date when the economic operator first knew or ought to have known that grounds for starting the proceedings had arisen."
(1) For the purposes of this Act, any new claim made in the course of any action shall be deemed to be a separate action and to have been commenced—
(a) in the case of a new claim made in or by way of third party proceedings, on the date on which those proceedings were commenced; and
(b) in the case of any other new claim, on the same date as the original action.
(2) In this section a new claim means any claim by way of set-off or counterclaim, and any claim involving either—
(a) the addition or substitution of a new cause of action; or…
(3) Except as provided by section 33 of this Act or by rules of court, neither the High Court nor any county court shall allow a new claim within subsection (1)(b) above, other than an original set-off or counterclaim, to be made in the course of any action after the expiry of any time limit under this Act which would affect a new action to enforce that claim….
(4) Rules of court may provide for allowing a new claim to which subsection (3) above applies to be made as there mentioned, but only if the conditions specified in subsection (5) below are satisfied, and subject to any further restrictions the rules may impose.
(5) The conditions referred to in subsection (4) above are the following:
(a) in the case of a claim involving a new cause of action, if the new cause of action arises out of the same facts or substantially the same facts as are already in issue on any claim previously made in the original action…"
1.1 The overriding objective
(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.
(2) Dealing with a case justly and at proportionate cost includes, so far as is practicable-
(a) ensuring that the parties are on an equal footing;
(b) saving expense;
(c) dealing with the case in ways which are proportionate-
(i) to the amount of money involved;
(ii) to the importance of the case;
(iii) to the complexity of the issues; and
(iv) to the financial position of each party;
(d) ensuring that it is dealt with expeditiously and fairly;
(e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases; and
(f) enforcing compliance with rules, practice directions and orders.
1.2 Application by the court of the overriding objective
The court must seek to give effect to the overriding objective when it-
(a) exercises any power given to it by the Rules; or
(b) interprets any rule,
subject to rules 76.2, 79.2 and 80.2.
1.3 Duty of the parties
The parties are required to help the court to further the overriding objective.
16.2 Contents of the claim form
(1) The claim form must-
(a) contain a concise statement of the nature of the claim;
(b) specify the remedy which the claimant seeks;
(2) If the particulars of claim specified in rule 16.4 are not contained in, or are not served with the claim form, the claimant must state on the claim form that the particulars of claim will follow.
16.4 Contents of the particulars of claim
(1) Particulars of claim must include-
(a) a concise statement of the facts on which the claimant relies;
17.1 Amendments to statements of case
(1) A party may amend his statement of case at any time before it has been served on any other party.
(2) If his statement of case has been served, a party may amend it only-
(a) with the written consent of all the other parties; or
(b) with the permission of the court…
17.4 Amendments to statements of case after the end of a relevant limitation period
17.4(1) This rule applies where—
(a) a party applies to amend his statement of case in one of the ways mentioned in this rule; and
(b) a period of limitation has expired under—
(i) the Limitation Act 1980;or …
(iii) any other enactment which allows such an amendment, or under which such an amendment is allowed.
(2) The court may allow an amendment whose effect will be to add or substitute a new claim, but only if the new claim arises out of the same facts or substantially the same facts as a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings.
"26. In my view the just approach is to look at the totality of the documents served. These documents together set out the claimant's pleaded case. There was an obvious mismatch, but in asking whether the proposed amendment was, in truth, an amendment to raise a new cause of action or merely to clarify an internal inconsistency in the pleaded case is, it is proper to look at the pleaded case as a whole. When one does so, it is clear, in my judgment, that what was sought to be done by the subsequent application to amend was not, in substance, to raise any new claim at all, but merely to correct an obvious formal error. I reject the argument that an amendment to correct that clerical error was prohibited by Rule 17.4 and, in my judgment, there was nothing to prevent the court from exercising its general discretion to do justice in response to the application to strike out the particulars of claim. If the circuit judge had considered that he had such a discretion, it is plain how he would have exercised it and, in my judgment, rightly so. I would therefore allow this appeal and restore the action".
Lady Justice Arden agreed but went on:
28. I start by applying the usual rules of interpretation. The claim form is a unilateral document which sets out the cause of action which the claimant claims to have and wants to rely upon. It must be interpreted objectively -- that is, by reference to the words according to their objective meaning. On the other hand, account must be taken of the factual matrix. That matrix would include communication between the parties made before or at the same time as the service of the claim form. As Lord Steyn said in R (Daly) v Secretary of State for the Home Department  2AC 532 at : "in the law, context is everything".
29. Toulson LJ has gone through the sequence of the communications between the parties, but I attach particular importance to the following documents. On 19 March 2003 there was the letter required by the protocol, setting out the claim of the claimant and referring to the accident to the claimant's hand. Then, in March 2006, the claim form and particulars of claim were served together and then, in May 2006, the solicitors for the claimant wrote to the defendant, and they referred to a further telephone communication which chronologically occurred either at the time of the letter in 2003 or shortly thereafter, which was to the effect that the claimant had dropped the claim for abuse at work and was focusing on the claim for personal injury and that alone. There was, therefore, a telephone communication at an earlier point in time.
30. As Toulson LJ has explained, there is no suggestion that the claimant deliberately referred to abuse at work in the claim form, intending to raise a claim for that. Nor is there any suggestion that the defendant understood the claimant to be doing so. So there is an obvious conflict between the claim form and the particulars of claim. They cannot both be right. In my judgment, on the ordinary rules of interpretation, the court would say that the words "abuse at work" in a claim form are an obvious clerical error which can be corrected, as a matter of interpretative, to accord with their objective meaning in the context or in the light of the factual matrix -- namely, accident at work. The interpreted exercise which is needed is as simple as substituting for the word "abuse" the word "accident".
31…The claim form has a very important function in our procedural system. It is the document which commences proceedings. There are special rules about its service, and I need only summarise the most important rules. There are, as I said, special rules about service, and the time for service, and then the extension of time of service. There are special rules about what the claim form must contain. There is a special rule about amendment and there are, importantly, special rules about adding or substituting new parties or claims, or altering a party's capacity after the limitation has expired -- CPR 17.4. But I do not see any basis in any of the rules to which we have been referred for saying that the rules regulate the interpretation or meaning of the claim…Nor do I consider that because the claim form is a public document the court is compelled to interpret the claim form without reference to the other document once it is issued. So far as the parties are concerned, the claim form is intended to be read with the particulars of claim…Of course, the overriding objective applies, but no one suggests that that would require a contrary interpretation in this case.
33. As I see it, therefore, the court below was in error in striking out the claim form. I consider that the claim form ought to have been amended in order that it properly reflects it true meaning…"
Laws LJ pithily said;
"The decisions below represent a stark surrender of substance to form. We should not allow such a thing unless irresistibly driven to do so".
"…the standard ought to be a knowledge of the facts which apparently clearly indicate, though they need not absolutely prove, an infringement"
"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."