Amey Highways Ltd v West Sussex County Council

The Claimant [“Amey”] has brought these proceedings against the Defendant [“the Council”] alleging failures in the Council’s procurement of a contract known as “Highways Term Service Contract 2018-2028” [“the Contract”]. The procurement was governed by the Public Contract Regulations 2015 [“the 2015 Regulations”]. The Council decided to award the Contract to Ringway Infrastructure Services Ltd [“Ringway”]. Amey’s overall score was assessed to be 85.48, which Ringway bettered by just 0.03. Amey alleges that its score should have been higher than Ringway’s and that it should have been awarded the Contract.

Amey’s case may be subdivided into two broad categories of attack:

By its Defence, which was served on 30 April 2018, the Council:

The Parties then took the following steps to raise the issues that now fall for resolution:

I shall deal with these issues in the following order:

The factual background appears from the documents and is largely non-contentious. The summary below draws heavily on the terms of the Particulars of Claim. It is neither necessary nor possible to resolve any factual disputes on the material that is now available, and I do not attempt to do so.

The Procurement was subject to a competitive dialogue process, involving three stages: first, an Invitation to Submit Outline Solutions; second, a Competitive Dialogue and; third, a Call for Final Tenders [“CFT”].

The Invitation to Tender [“ITT”] divided the tender submission into two sections, quality and cost. The quality submission was worth 40% of the overall score with the cost submission being worth 60%. The ITT set out a table in conventional form that established the marks that were to be awarded for the quality submission, ranging from a score of 0, which was classified as “No response (complete non-compliance)” as defined, to 10, which was classified as “Outstanding Response” as defined.

The cost submission score was subdivided in accordance with a Cost Matrix that is set out below:

Other relevant provisions of the ITT for present purposes were:

The following points arise:

Amey submitted its final tender on 15 December 2017. Two categories of costs that might otherwise have fallen within the area of LMO were excluded from it. First, Amey claims that the equivalent of 4 full time staff were excluded from LMO and included in the defined Total Costs sections of the tender because they were subcontractor’s costs. Second, Amey claims that the equivalent of 4.25 full time employees were not included as costs at all because Amey proposed to cover their costs by cross-subsidising from the profits achieved on other contracts so that no costs should fall on the Council.

There followed a period during which the Council issued requests to tenderers for clarifications and, where it considered necessary and appropriate, instructions to tenderers to modify their tenders if the Council considered that they were not compliant with the requirements of the Procurement.

The first relevant clarification request by the Council was sent on 20 December 2017 in the following terms: “Please ensure that all your staff mentioned in the staff labour rates are included in the Local Overhead”.  Amey replied:

“… To confirm, all the staff identified in the “staff labour rates” tab are priced either in the LMO Revenue/Capital, in the Fee (where support function) or in Defined Cost for Schemes where these staff will be secondees from our supply chain, paid through Defined Cost.  The design rates supplied are hourly rates only.”

On 4 January 2018 the Council noted that, in relation to the LMO, Amey had allocated the equivalent of 3.9 FTE to its build-up of revenue costs and 18.85 FTE to its build up of capital costs and that this appeared quite low as a support resource given the scale of the work. It therefore asked Amey whether there was an error in its apportionment. Amey responded that it had priced the organisation structure contained within its quality submission which totalled 36.75 FTEs. Amey then indicated how it had priced those staff and that this included the movement of staff as previously clarified. It included in its breakdown of “Staff Priced in Contract” (a) “4.00 FTE – Capital Schemes” and (b) “4.25 FTE – Staff recovery through Third Party Sales” – those were the costs to which I have referred above at [12].

On 17 January 2018, the Council returned to the point and raised a further query about the treatment of “third party sales” for the 4.25 FTEs in the Claimant’s Cost Model:

“We are currently finalising the Financial evaluation of the above contract and have a further clarification that we need you to address as a matter of urgency:

Referring to the Local Management Overheads and specifically where you state that 4.25 FTEs will be funded from third party sales, please can you clarify by confirming which staff this applies to (against those shown on the staff tab in the costs model) and the detail of how the funding will be generated with any justification and evidence of using examples of how this has been successfully implemented on other highway contracts.”

Amey replied the same day:

“In reference to point 1 of the clarification, we confirm that the staff that third party sales apply to are highlighted in red in Cost Model Update 5 attached of which a small proportion of the roles equate to 4.25 FTEs. For clarity, this only demonstrates the allocation of over-recovery against staff, this is not a reduction in staff availability to the West Sussex Highways service.

In reference to point 2, the funding is generated from our assessment of third party sales over the Contract duration such as frameworks we are on in the South East, developer proposed schemes (278s etc) and enhanced capital scheme programmes. This assessment has been developed from our experiences in other Contracts.

…

We confirm that this is a sustainable solution and that Amey accepts all risk on the recovery of these 4.25 FTEs as tendered, any shortfall would be recovered through our profit as stated in our submitted fee.”

I note in passing that this reply made clear that Amey intended that no costs in relation to the 4.25 FTE staff were to fall on the Council whether by being included in the Contract pricing or otherwise.

The Council gave its response on 19 January 2018 in the first “instruction” that is directly relevant to the Instruction Claims. It wrote:

“After further consideration of your latest clarification response, we have identified a significant concern relating to your allocation of people costs in the LMO.

To ensure your evaluation meets the principles of the regulations around equality and transparency, and that your submission can be assessed as fully compliant, please re-allocate the 4 people costs that are currently priced as “Capital Staff” and the 4.25 posts currently priced as “third party funded’ into the Local Office overhead. You will then need to apportion, as appropriate, between capital and revenue activities.

If these 4.25 people are required to deliver the contract services, then these people and costs need to be reflected in the LMO. If these people are not part of delivering the contract, then we would not expect to see any cost for them. This will also ensure transparency of costs during contract delivery.

Please can you respond by no later than 0900am on Monday 22^nd Jan and provide an updated cost model … based on your previous response, including revised Contract Data.”

Amey replied to the Defendant’s instruction on 21 January 2018:

“Please be assured that our cost model was developed to be compliant with Schedule 6, and to be as transparent as possible, therefore any ambiguity was not intended, and we hope that this did not cause any inconvenience.

Further to your request, we have made the following amendments to the cost model:

1)

In relation to your request regarding the allocation of the 4 Capital staff, we can confirm that we had included those costs within the delivery rates in accordance with Schedule 6. However, as requested we can confirm that we have now removed these costs from the delivery rates and added them to the LMO within the cost model (…[Update 6]).

2)

In relation to your request regarding the re-allocation of the 4.25 third party funded staff we can confirm that we have complied with your request and have placed the costs of the 4.25 staff into the instructed locations in the provided Cost Model Update (… [Update 6]). Furthermore, and in accordance with the Cost Model Instructions on the “Local Office Management Overhead” tab cell B108, we have provided a revised percentage that equates to the reduction in costs of these staff to reflect the 3^rd party recovery assessment as described in our clarification response [on 17 January 2018].

We do note that the changes above are cost neutral (i.e. we have moved costs and not increased our cost) and that the evaluation mechanism of the model is increasing our cumulative submission by £1.4m.”

In order to avoid its costs submission being treated by the Council as non-compliant, Amey amended its Cost Model and submitted Update 6, which took into account the changes it had made in the light of the Council’s 19 January 2018 instruction. It brought the 4.25 FTE staff into the LMO summary at nil additional cost, which was achieved by adjusting the overall percentage factor that was applied to all LMO costs from 100% (which it had been previously) to 90.04%. The effect of the changes in update 6 was to increase Amey’s tender price for the purposes of the evaluation by approximately £1.4 million.

On 2 February 2018, the Council wrote again to Amey. After referring to its instruction on 19 January 2018 the Council continued:

“1.

AMENDMENT OF COST MODEL

Unfortunately your revised Cost Model [Update 6] … is not compliant with the Authority’s instructions to bidders with regard to the manner in which you propose to deal with the cost of the 4.25 FTEs that appears in the LMO schedule.

The presentation of this cost in the LMO schedule must comply with the Authority’s requirement that bidders:

a.

include the full cost of staff allocated to the contract in the LMO schedule;

b.

apply a percentage reduction to the full cost of all overheads in the LMO schedule for the purposes only of properly reflecting the proportion of the LMO cost that will be incurred on other contracts.

These requirements are as set out in the [CFT] Schedule 6 and the notes to the Cost Model and as discussed with bidders during Stage 2 Competitive Dialogue.

Whilst you have correctly included the full cost of the 4.25 FTEs in the LMO schedule in your current Cost Model, the current Cost Model is non-compliant in terms of your application of the percentage reduction factor to that cost.

Your revised Cost Model must apply a percentage reduction factor of 100% to these costs in order to properly reflect all LMO costs will be allocated full time to the contract, according to your tender.

The correction of the percentage reduction factor to 100% (and the recalculation of the LMO cost tab on that basis) is the only change that the Authority will permit to your Cost Model. The cost of 4.25 FTEs to which the percentage reduction factor is applied, should remain as stated in your current Cost Model.

…

The Authority is prepared to exercise its discretion to permit you to submit a revised Model v7.0 that is compliant with the Authority’s instructions. The revised Cost Model should correct the percentage reduction in the LMO schedule that applies to the cost of the 4.25 FTEs to 100%. No other changes should be made in the Cost Model or to any other elements of your tender.

Please would you respond no later than 5.00pm on Tuesday 6^th February 2018 on this matter, after which time the Authority will undertake a final assessment of your bid based on the information you provide, including any revised Cost Model submitted by that deadline.”

The reference to a percentage reduction factor of 100% is potentially confusing. Applying a factor of 100% means that there is no percentage reduction such as had been applied by Amey in update 6.

Again, to avoid its cost submission being assessed by the Defendant to be non-compliant in the light of the Council’s 2 February 2018 instruction, on 6 February 2018 Amey amended its Cost Model and submitted Update 7. Update 7 included all the notional costs for staff mentioned in the LMO with no reduction attributable to Amey’s intention that no costs should fall on the Council for the 4.25 FTE staff. This increased the cost of Amey’s tender by approximately a further £1.4 million for the purposes of the evaluation.

Amey was notified on 14 February 2018 that it had not been awarded the contract.

It is Amey’s case that its tender would have been the most competitive in the absence of the adjustments made as a result of the instructions of 19 January and 2 February 2018. Its pleaded case at [33.1] and [33.2] of the Particulars of Claim is that:

“33.1

the Defendant was wrong to instruct the Claimant to include the cost of 4 FTE (“Capital Staff”) into the Local Office Management Overhead (“LOMO”) section of the Cost Model as these were sub-contractor costs and did not, in accordance with the instructions in Schedule 6 of the ITT, fall to be included there. … In Cost Submission Update 5, the Claimant had correctly included those costs in the delivery rates;

33.2

the Defendant was wrong to instruct the Claimant to include a cost for 4.25 FTEs at 100% into the LOMO. The Claimant was entitled to discount the costs equivalent to 4.25 FTEs in the LOMO on the basis that, by reason of third party sales, those costs would not be charged by the Claimant to the Defendant on the Contract. That was in accordance with the instructions in the ITT. … The Claimant was therefore entitled (as it did in Cost Submission Update 5) to leave these costs out of the LOMO; alternatively, the Claimant was entitled to apply a discount to the costs in the LOMO equivalent to the cost of 4.25FTEs (as it did in Cost Submission Update 6).”

During pre-action correspondence the parties discussed a standstill on time running for the bringing of any claim. On 1 March 2018 Amey’s solicitors asked the Council not to take any limitation point in respect of the period starting that day and ending at midnight on the third working day after receipt of the Council’s substantive response. The Council’s initial response was that “even on the most conservative view, [Amey] could not have acquired the requisite knowledge of a potential claim until it received the Council’s standstill notice on 14 February 2018” and that, by the Council’s calculations, Amey had until 15 March 2018 to issue proceedings. Amey maintained its request for a standstill agreement. On 5 March 2018 the Council confirmed that it would not take any limitation point for the period starting that day and ending at midnight on the third working day after the date of the issue of the Council’s substantive response to Amey’s letter of claim. That substantive response was issued on 12 March 2018, so that the standstill period ended at midnight on 15 March 2018. At the hearing, Mr Coppel QC confirmed on behalf of the Council that the standstill was agreed to start on and from 2 March 2018.

Amey issued these proceedings on 15 March 2018.

It is convenient and conventional to refer to the relevant time-barring provisions of the PCR as “limitation” provisions, though that description is not technically accurate.

Regulation 92 of the PCR 2015 provides:

“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.

(3)

…

(4)

Subject to paragraph (5), the Court may extend the time limits imposed by this regulation … 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.

(6)

For the purposes of this regulation, proceedings are to be regarded as started when the claim form is issued.”

Regulation 92(2) may involve a two-part enquiry in order to determine the date from which time runs. The first part is to establish when grounds for starting proceedings have arisen: in other words “when did the right of action, if any, first arise?”: see Jobsin.co.uk v Department of Health [2002] 1 CMLR 44 at [8]. In Amarylis Limited v HM Treasury [2009] EWHC 962 (TCC) at [52] Coulson J concluded that the grounds for bringing proceedings arise “when a specific and irrevocable act occurs”, though this formulation has not been consistently accepted.

The second part of the enquiry is to establish “when the economic operator first knew or ought to have known that grounds for starting the proceedings had arisen”. In many cases this may be the same date as when grounds for starting proceedings first arose; but in some cases it may be a later date. For this reason Regulation 92(2) is often said to provide a knowledge-based test.

Two points are now established:

The Court may extend time limits under Regulation 92(4) (up to a maximum of 3 months after time started to run) “where the Court considers that there is a good reason for doing so.” The policy considerations to which I have just referred reinforce the conclusion that the power to extend time limits will be exercised strictly: see Matrix-SCM Limited v LB Newham [2011] EWHC 2414 at [14].

A number of authorities have considered what may be good reason for extending time limits, either in principle or on the facts of a particular case. Many have said that it would be unwise to try to provide a definitive list of what the Court will or will not take into account in assessing what may be good reason for extending time limits. I agree, for the simple reason that the Regulation does not impose any fetter or limitation upon what may be brought into account. For that reason I would not accept that the Claimant must show good reason for not issuing in time as a necessary pre-requisite to the exercise of the Court’s discretion under Regulation 92(4), although the absence of good reason for not issuing in time is always likely to be an important consideration. And when considering what other factors may be brought into account if appropriate in a given case, I note the summary in Matrix-SCM at [16] of the views of the Divisional Court (Moses LJ and Beatson J) in Law Society of England and Wales v LSC [2010] 2555 (Admin): relevant considerations will include (a) the importance of the issues in question (b) the strength of the claim (c) whether a challenge at an earlier stage would have been premature, the extent to which the impact of the infringement is unclear and the claimant's knowledge of the infringement, and (d) the existence of prejudice to the defendant, third parties and good administration. For the reasons I have already given, I do not think that this should be regarded as an exhaustive catechism, even in general terms.

Although the strength of the claim may be a material consideration, it will often be hard to judge strength or weakness reliably when time-bars and possible extensions of time are decided at an early stage. As in other areas of the law where a discretion is to be exercised and the material considerations may include the strength of the claim, I would exercise considerable restraint and caution before concluding that the strength (or weakness) of a claim is so strong as to exercise a determinative influence. In many (if not most) cases the Court will only be in a position to conclude that the claim is not obviously hopeless or fanciful. I agree that, at least in a case where it is cannot be said that the merits are overwhelmingly strong (or weak), the fact that a claim is prima facie good and big “is not a particularly good reason for overriding the time bar”; and that while “one can imagine circumstances in which weakness or small size of a claim tells against the exercise of a discretion, … as factors in favour of it the size of a claim and its merits are weak.”: see SITA at first instance, per Mann J, [2010] EWHC 680 Ch at [176]

It is common ground that time started to run against Amey in relation to the claim pleaded at [33.1] of the Particulars of Claim when the instruction was given on 19 January 2018 that Amey should include the 4 FTEs in the LMO. The 30 day period expired on 19 February 2018. Amey therefore requires an extension from that date to 15 March 2018.

The parties do not agree about the date from which time runs against Amey in relation to the claim pleaded at [33.2] of the Particulars of Claim. Amey submits that the correct date is 2 February 2018 relying on its pleaded case that it was then that the Council instructed it “to include a cost for 4.25 FTEs at 100% into the [LMO].” The Council submits that its relevant instruction was the third party sales instruction on 19 January 2018 that “[i]f these 4.25 people are required to deliver the contract services, then these people and costs need to be reflected in the LMO.” As submissions progressed, it became apparent that this dispute hinges on the meaning to be given to the word “reflected” when read in context.

This raises a short point of construction. I have set out the context earlier in this judgment, including the full terms of the 19 January 2018 instruction at [19] above. On the short point of construction, I prefer Amey’s submissions and reject those of the Council for the following reasons:

As part of its submissions on [33.2], Amey submitted as a separate point in answer to the Council’s submissions on the 19 January 2018 instruction that 2 February 2018 was still the date from which time ran because “until then, it was open to the Council to accept the Costs Model submitted by Amey, either as originally submitted with the final tender and [sic] as submitted following the instruction on 19 January 2018.” That is not the reason I have adopted for my decision. I merely record that no similar argument was submitted by Amey in relation to the start date for the 4 FTE claim advanced by [33.1] of the Particulars of Claim, it being common ground that the start date was 19 January 2018.

The claim for an extension of time for the [33.2] claim is straightforward. Time began to run on 2 February 2018 and expired on 2 March 2018. The period from 5 March to 15 March 2018 when proceedings were issued, is covered by the standstill agreement. The Council has not attempted to go behind that agreement and it would have been quite unconscionable for it to have done so. In my judgment the existence of that agreement is good reason to extend time to 15 March 2018 even allowing for the strictness of approach to which the authorities refer. I order that time be extended accordingly.

The claim for an extension of time for the [33.1] claim is obviously different. Time expired on 19 February 2018 and had therefore expired before the standstill agreement came into force. No reason (good or otherwise) has been advanced to explain why proceedings were not issued in time. Two points are taken. The first is that the delay between 19 February and 2 March 2018 did not cause any prejudice, and the period from 2 to 15 March is covered by the standstill agreement. The second is that the claim is not merely strong but unassailable because no substantive defence has been pleaded. I take the points in that order.

I accept that the delay between 19 February and 2 March 2018 is the critical delay because there is good reason thereafter provided by the standstill agreement. In relation to the period between 19 February and 2 March 2018 I also accept that no prejudice has been suffered by the Council. I would go further and accept that there has been no material prejudice to the wider public interest. That is because, even if Amey had issued proceedings in respect of the claim now included in [33.1] of the Particulars of Claim within time. It is overwhelmingly probable that it would have made little or no progress until the claims under [33.2] and the Manifest Error Claims were issued at a later date. It is inconceivable that the Court would have permitted the parties to litigate the [33.1] claim separately from the other complaints that Amey raised on and from the date of its letter of claim on 21 February 2018. Accordingly, this is a case where not merely can it be said that there is no prejudice, but the delay in relation to [33.1] has been of no practical consequence at all.

Turning to Amey’s second submission, it is unrealistic and procedurally impossible to ignore the fact that the Council has very recently submitted a draft Amended Defence which seeks to raise a substantive defence to the Instruction Claims. The Council says, and I accept, that it initially decided to raise its pre-emptive arguments on time-bar and to leave its substantive defence to the Instruction Claims unpleaded. In the experience of the Court this is by no means a unique procedural approach, though it carries risks if the pre-emptive arguments fail. Furthermore, it is relatively common for a defendant, when confronted (as the Council is) by a claim for summary judgment, to seek to bolster its position by amending its Defence.

The proposed amendments raise issues of fact, law and mixed fact and law. In answer to a direct question from the Court, Mr Coppel QC confirmed that, as pleader, he has evidence to support and justify the allegations of fact that he now wishes to add by amendment. I accept his assurance. Though the proposed substantive Defence (both legal and factual) is likely to prove contentious, it cannot be said, on present information and submissions, to be fanciful or so insubstantial that it can safely be dismissed.

In these circumstances, and applying the strict test to which I have referred above, I would exercise my discretion in favour of extending Amey’s time for bringing the claim under [33.1] of the Particulars of Claim. To my mind, it would be sterile and potentially unjust not to extend time when, as here, it can be seen that the short delay has made no difference at all because of the existence of the other claims that would necessarily have slowed the progress of the [33.1] claims even if issued in time.

I am not convinced that this is one of those relatively rare cases where the claim can be seen to be overwhelmingly strong or weak. I have not been addressed and am not in a position to make a reliable estimate of the strength or weakness of Amey’s claim or the Council’s proposed substantive defence save to say that neither appears to be fanciful on the materials and submissions that have been available and made at the present hearing. In the circumstances that I have outlined, the best course is to give permission to the Council to amend in the terms of its draft amended Defence. The relative strengths and weaknesses of the parties’ substantive positions can then be tried properly and a reliable judgment formed.

Mr Patel QC for Amey submitted that, because of the lateness of the Council’s proposed draft Defence, Amey has not had a proper opportunity to assess and (if so advised) to meet it on its merits. There is force in that submission; and nothing I have said precludes Amey from applying at a later date (if so advised) to strike out some or all of the amendments to the Defence that I have just allowed in.

Amey’s application for extensions of time for the Instruction Claims are granted.

Permission is granted to the Council to amend its Defence in accordance with the submitted draft. This is without prejudice to Amey’s right (if so advised) to apply to strike out all or part of the amendments at a later date.

There shall be no order for summary judgment or to strike out relevant parts of the pleadings in either direction on the Instruction Claims.

It is worth setting out [34.1] and [34.2] of the Particulars of Claim in full rather than attempting to paraphrase them.

“34.1

Question 11.03 asked the tenderer to set out an overview of its proposal for improving the delivery and performance of the Winter Service. The Claimant scored a 7 and the feedback provided suggested that inter alia “the Savings Cards in places had not been considered holistically against the overall service and relied upon a number of dependencies, which provided concern around the deliverability for [the Defendant] and that the full value of the savings would not be realised”. However, the Claimant’s response to this question included four contractualised Savings Cards, representing an overall saving of c.£1.8m and, given their status as contractualised Savings Cards, it was irrational for the Defendant to conclude that there were a number of dependencies which provided concern around the deliverability and that the full value of the savings would not be realised. Had the Defendant properly considered the contractualised Savings Cards and the overall saving, it would have awarded the Claimant a score of at least an 8 for this answer;

34.2

Question 11.04 asked the tenderer to set out an overview of its proposal for improving the delivery and performance of Drainage Cleansing. The Claimant scored a 6 and the feedback provided suggested that inter alia “the Savings Cards caused some confusion across the team and relied upon various dependencies, which caused concern that these may not be deliverable and realise the full saving”. The Defendant has failed to take into account the Claimant’s subsequent clarification that SCC11.4.3B was not dependent upon SCC11.4.3A and following which SCC11.4.3B remained a contractualised saving. It was a manifest error for the Defendant in the scoring of Question 11.04 not to take into account the Claimant’s subsequent clarification; alternatively, it was irrational for the Defendant to conclude that the Saving Card (which represented a saving of c.£629,000) relied upon a number of dependencies which provided concern around the deliverability and that the full value of the savings would not be realised. Had the Defendant properly considered the status of Savings Card SC11.4.3B (as being contractualised and not dependent), it would have awarded the Claimant a score of at least an 8 for this answer.”

The Council applies to strike out these claims on the basis that “the essential premise of both complaints is that it was not open to the Council to take any account of weaknesses in the savings cards submitted by Amey. However, neither plea identifies any provision of the tender documents that stipulates such an effect. These complaints accordingly have no realistic prospect of success.”: see the Council’s skeleton argument at [5(2)] as amplified at [42]-[44].

I do not accept the Council’s submission. The Manifest Error Claims do not assert or necessarily imply an assertion that it was not open to the Council to take account of weaknesses in the savings cards submitted by Amey. What they do assert is that the Council’s understanding and interpretation of the savings cards was wrong and irrational and that the error and irrationality led to error and irrationality in the score that was awarded. Determination of that issue requires close consideration of the factual evidence that is beyond the scope of a strike out/summary judgment application. All that can be said at present is that the Council has not shown that the Manifest Error Claims have no reasonable prospect of success. Other than that, I express no view on the merits of the Manifest Error Claims.

The Council’s application to strike out the Manifest Error claims is rejected.