Lion Apparel Systems Ltd v Firebuy Ltd [2007] EWHC 2179 (Ch)

Thursday September 27th, 2007
Neutral Citation Number: [2007] EWHC 2179 (Ch)
    Case Nos: HC07C01111 & HC07C01645

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

    Royal Courts of Justice
Strand, London, WC2A 2LL
    27/09/2007

B e f o r e :

MR JUSTICE MORGAN
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Between:

  LION APPAREL SYSTEMS LIMITED
Claimant
  - and -

  FIREBUY LIMITED
Defendant

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Mr Jonathan Hirst QC & Mr Aidan Robertson & Ms Jessica Mance (instructed by Eversheds) for the Claimant
Mr Michael Bowsher QC & Mr Rob Williams (instructed by Pinsent Masons) for the Defendant
Hearing dates: 18th, 19th, 20th, 21st, 24th & 25th September 2007

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HTML VERSION OF JUDGMENT
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Crown Copyright ©

    Mr Justice Morgan :INTRODUCTION

  1. This is an application by the Claimant, Lion Apparel Systems Limited, for an interim order under Regulation 32 of the Public Services Contract Regulations 1993, pending the trial of this action, to prevent the Defendant, Firebuy Limited, from entering into a contract with Bristol Uniforms Limited for the supply of fire-fighters’ uniforms and personal protective equipment (“PPE”).
  2. The Claimant is Lion Apparel Systems Limited which is the U.K. subsidiary of an American parent, Lion Apparel Inc. The Lion Group of companies produces a full range of fire-fighters’ uniforms and PPE. In this judgment, I will refer to the Claimant as “Lion”.
  3. The Defendant is Firebuy Limited (“Firebuy”). Firebuy was established on 20 September 2005 as a company limited by guarantee. It is a Non Departmental Public Body. One of its first tasks was to take over managing a procurement process which had been started by the London Fire and Emergency Planning Authority (“LFEPA”). THE PROCUREMENT PROCESS
  4. It is possible to describe the key steps in the relevant procurement process succinctly as follows.
  5. The procurement process relates to a project referred to as the Integrated Clothing Project or “ICP”. The ICP reflects relevant central government policy. The ICP is to offer to Fire and Rescue Authorities (“FRAs”) the supply of PPE and other clothing (such as station wear) and also a stock management and maintenance service.
  6. The procurement process in this case is governed by Council Directive 92/50/EEC and the Public Services Contracts Regulations 1993 (hereafter “the 1993 Regulations”).
  7. On the 14 June 2003, LFEPA caused to be published in the Official Journal a notice of its intention to invite tenders for the ICP.
  8. The competition was to take place in three stages. The first stage involved the submission of pre-qualification questionnaires (“PQQs”). This stage took place in around July 2003.
  9. There was then a considerable interval of time before the second stage took place in mid 2005. The second stage involved the issue of an invitation to negotiate, known as an ITN1. This second stage dealt principally with the design of the various garments and other equipment. At around this time, the authority responsible for the procurement set up a Garment Trials Working Group (“GTWG”).
  10. Firebuy was created in September 2005 to become the central purchasing body in connection with the ICP. Firebuy officially took over the procurement process from the LFEPA in December 2005.
  11. The third stage was the principal stage of the procurement process. The first thing to happen was in September 2005, when the GTWG invited bidders to measure the volunteers who were to help with the garment trials. The bidders were given until January 2006 to make limited changes to their garments and resubmit garments to the GTWG. There were then garment fitting days on 3 and 4 May 2006.
  12. On the 22 May 2006, Firebuy issued an invitation to negotiate, known as an ITN2 to the 4 bidders.
  13. Between May and July 2006, the garment trials were carried out.
  14. On 13 October 2006, Lion submitted its bid to Firebuy. Firebuy received 4 bids in total. On 13 December 2006, Firebuy invited all 4 bidders to what was called a Bid Development Day. On 19 December 2006, there were meetings between Lion and Firebuy, these meetings representing Lion’s Bid Development Day.
  15. On 29 January 2007, Lion submitted a revised bid. The other 3 bidders also submitted revised bids.
  16. On 23 March 2007, Firebuy announced the result of the procurement process. Bristol Uniforms Limited (“Bristol”) was the preferred bidder. All the bidders had been ranked by Firebuy and Lion was third in the list of preference.
  17. On 27 March 2007, Lion’s solicitors requested certain information from Firebuy. Firebuy’s solicitors replied on 28 March 2007. On 29 March 2007, Lion and Firebuy met for what was called an oral debrief. On 2 April 2007, Lion’s solicitors raised further requests for information from Firebuy. On 5 April 2007, Firebuy’s solicitors replied. There was then considerable further correspondence between the parties.
  18. In a letter of 12 April 2007, Lion’s solicitors identified matters of concern to Lion. Lion now relies on that letter as a notice under Regulation 32 of the 1993 Regulations.
  19. On 24 April 2007, Lion issued the first claim form in these proceedings but did not serve it on Firebuy, which did not know of this claim form until some time later.
  20. On 27 April 2007, Firebuy supplied Lion with a very lengthy document intended to be a debriefing in relation to Lion’s bid and participation in the procurement process.
  21. On 1 May 2007, Lion’s solicitors identified a number of alleged breaches of obligation by Firebuy. Lion relies on that letter also as a notice under Regulation 32 of the 1993 Regulations.
  22. On 19 June 2007, Lion’s solicitors wrote again identifying a number of alleged breaches of obligation by Firebuy. Lion relies on that letter also as a notice under Regulation 32 of the 1993 Regulations.
  23. On 22 June 2007, Lion issued its second claim form in these proceedings. The claim forms in both actions were served on that day on Firebuy.
  24. On 5 July 2007, Lion served Particulars of Claim in both actions.
  25. During the hearing, Lion’s solicitors sent a further notice for the purposes of Regulation 32 of the 1993 Regulations and issued a third claim form. THE RELEVANT LEGAL PRINCIPLES
  26. The procurement process must comply with Council Directive 92/50/EEC, the 1993 Regulations and any relevant enforceable Community obligation.
  27. The principally relevant enforceable Community obligations are obligations on the part of the Authority to treat bidders equally and in a non-discriminatory way and to act in a transparent way.
  28. The purpose of the Directive and the Regulations is to ensure that the Authority is guided only by economic considerations.
  29. The criteria used by the Authority must be transparent, objective and related to the proposed contract.
  30. When the Authority publishes its criteria, which conform to the above requirements, it must then apply those criteria. The published criteria may contain express provision for their amendment. If those provisions are complied with, then the criteria may be amended and the Authority may, and must, then comply with the amended criteria.
  31. In relation to equality of treatment, speaking generally, this involves treating equal cases equally and different cases differently.
  32. Council Directive 89/655/EEC (the remedies directive) requires Member States to take measures necessary to ensure that decisions taken by an Authority in this context may be reviewed effectively and as rapidly as possible on the grounds that such a decision may have infringed Community law in the field of public procurement or national rules implementing that law.
  33. Regulation 32 of the 1993 Regulations (which I consider below) gives effect to the remedies directive.
  34. When the court is asked to review a decision taken, or a step taken, in a procurement process, it will apply the above principles.
  35. The court must carry out its review with the appropriate degree of scrutiny to ensure that the above principles for public procurement have been complied with, that the facts relied upon by the Authority are correct and that there is no manifest error of assessment or misuse of power.
  36. If the Authority has not complied with its obligations as to equality, transparency or objectivity, then there is no scope for the Authority to have a “margin of appreciation” as to the extent to which it will, or will not, comply with its obligations.
  37. In relation to matters of judgment, or assessment, the Authority does have a margin of appreciation so that the court should only disturb the Authority’s decision where it has committed a “manifest error”.
  38. When referring to “manifest” error, the word “manifest” does not require any exaggerated description of obviousness. A case of “manifest error” is a case where an error has clearly been made.
  39. I take the above principles from the decision of the Supreme Court of Ireland in SIAC CONSTRUCTION V MAYO COUNTY COUNCIL [2003] EuLR 1, and the decision of the Court of First Instance in EVROPAIKI DYNAMIKI V COMMISSION 12th July 2007 at [89].
  40. Regulation 32 of the 1993 Regulations provides that the duty on an Authority to comply with the 1993 Regulations and with any enforceable Community obligation in respect of a public services contract is a duty owed to the bidder.
  41. A breach of the duty referred to in Regulation 32 is actionable by a bidder who in consequence suffers loss or damage or risks suffering loss or damage.
  42. The bidder will be able to show that a breach of duty will cause him to suffer loss or damage, or the risk of loss or damage, if he had a chance (which the law recognises as sufficiently good to merit consideration) that if the breach had not been committed, the contract would be awarded to it and the breach causes the bidder to lose that chance: MATRA COMMUNICATIONS SAS v HOME OFFICE [1999] 1 WLR 1646 at 1656 C-H.
  43. Under Regulation 32(4), a bidder may not bring proceedings under Regulation 32 unless he has informed the Authority (1) of the breach or the apprehended breach of the duty owed to him; and (2) of his intention to bring proceedings under Regulation 32 in relation to the breach.
  44. Proceedings under Regulation 32 must be brought promptly. In any event, the proceedings must be brought within 3 months of the breach of duty. The requirement of “promptness” states the basic time limit upon the bidder. Proceedings that are not prompt but which are brought within the 3 months will still be considered to be out of time.
  45. For the purposes of Regulation 32, time starts to run when the grounds for alleging breach of duty exist. Accordingly, time can begin to run whether or not the bidder knows of the existence of such grounds.
  46. In relation to the issue of promptness of proceedings, an assessment of promptness may conceivably be affected by the consideration that the bidder did not know of the existence of grounds for bringing proceedings.
  47. However, in relation to the specified period of 3 months in Regulation 32, this would not seem to be affected by the fact that the bidder did not know of the existence of grounds for bringing proceedings.
  48. The court may extend the time for bringing proceedings where the court considers there is good reason to do so.
  49. Any unfairness arising from the fact that time started to run under Regulation 32 when the bidder did not know of the existence of grounds for bringing proceedings can be assessed when the court is asked to extend the time for bringing proceedings.
  50. Because the proceedings must be brought promptly and because the bidder must have given a Regulation 32 notice before commencing proceedings, the notice must itself have been given promptly or as it has been said “pre-promptly”.
  51. In considering promptness, it may be relevant to consider the stage which the procurement process has reached. If the process is continuing and a further stage is about to begin, it is all the more important that a bidder who wishes to complain of an apprehended breach of duty by the Authority does so without delay to enable the Authority to react to the notice, to consider how to deal with the matter of complaint and, if appropriate, to prevent the breach of duty being committed.
  52. The requirements for a valid Regulation 32 notice have been described in LUCK V LB OF TOWER HAMLETS [2003] EWCA Civ 52. The importance of the requirement for service of a prompt valid notice is emphasised in that case.
  53. The importance of promptness in relation to the commencement of proceedings has been described in JOBSIN.CO.UK PLC V DEPARTMENT OF HEALTH [2001] EuLR 686 and SEVERN TRENT WATER LTD V HOLLERAN [2005] EuLr 364.
  54. The 1993 Regulations state that the court has power to make an interim order suspending the procurement process.
  55. The power to make such an interim order is generally understood to equate to the court’s general power to grant an interim injunction to restrain a breach of duty or to require the remedying of an earlier breach of duty.
  56. In connection with an application for an interim order suspending the process, the bidder must show that it has a sufficiently strong case. For this purpose, the bidder must show that its allegation of breach of duty, at least, involves a serious issue to be tried at a later trial.
  57. If the application for an interim order has been considered in detail by the court, then the court may act upon any clear opinion which it has been able to form as to the bidder’s prospects of success at a trial.
  58. If the bidder shows that there is a serious issue to be tried, then the next question will be whether damages will be an adequate remedy for the bidder. This may give rise to consideration of whether such damages can be accurately quantified and also as to whether the Authority will be able to pay any such damages.
  59. If the bidder shows that there is a serious issue to be tried and that damages would be an inadequate remedy, then the next question will be whether damages will be an adequate remedy for the Authority if an interim order were made which, it turns out at trial, should not have been made. This question of adequacy of damages raises similar questions to those already considered in relation to the bidder’s claim to damages, but may also involve questions of the public interest and also the interests of any relevant third parties.
  60. If damages are not an adequate remedy for both the bidder and the Authority, then the court will exercise its discretion as to the grant of an interim order by reference to the balance of convenience or the balance of justice. This requires the court to consider the harm which will be done to the Authority and others if an injunction is granted and it turns out at trial it should not have been granted and also to consider the harm which will be done to the bidder if no injunction is granted and it turns out at trial that it should have been.
  61. If the court is prepared to make an interim order, it will require the bidder to give an undertaking in damages. It is open to the court to require the undertaking to extend to losses which might be suffered by third parties, such as another bidder involved in the procurement process. THE ORDER IN WHICH I WILL CONSIDER THE HEADS OF CHALLENGE
  62. I will consider the heads of challenge which need to be discussed in detail before I consider the heads of challenge that can be dealt with more shortly. I will therefore discuss the challenges in this order:
    • Bristol’s criminal convictions;
    • Scoring methodology;
    • The technical files;
    • The non-structural tunic;
    • The call centre;
    • Tier1/ Tier 2 availability;
    • Brigade stock;
    • Fitting of garments;
    • Feedback on garments;
    • Feedback at the BDD relating to price;
    • Breach of confidentiality;
    • Legal mark up;
    • General favouritism.

    BRISTOL’S CRIMINAL CONVICTIONS

  63. Article 29 of Council Directive 92/50/EEC states that a procuring authority may exclude a bidder from participating in the procurement process if the bidder has been convicted of an offence concerning his professional conduct. Regulation 14 of the 1993 Regulations is in similar terms.
  64. On 11 April 2003, Bristol was convicted of three offences relating to trade descriptions of fire fighters’ uniforms.
  65. In July 2003, Bristol submitted to Firebuy a completed Pre Qualification Questionnaire (“PQQ”). The PQQ asked Bristol to confirm that none of the matters in Regulation 14 applied to Bristol. Bristol so confirmed. That answer was in fact wrong in view of the 3 convictions I have referred to.
  66. Paragraph 12 of the PQQ stated: “Providing false information will invalidate this application and may disqualify an organisation from consideration.”
  67. Section H of the PQQ required the bidder to certify that the information provided was accurate to the best of his knowledge and further to state: “I understand and accept that false information could result in rejection of the Company’s application to tender.”
  68. I will refer below to what LFEPA (the body that was then handling this procurement) thought and did when it received Bristol’s PQQ.
  69. Following the PQQ stage, Bristol was obviously regarded by the procuring authority as qualifying to move to the next stage.
  70. Bristol later submitted proposals in response to ITN1 and 2 bids in response to ITN2. At these stages, Bristol was required to confirm that the information given in the PQQ was correct. Bristol did so confirm although in fact the information was not correct.
  71. Following Firebuy’s decision in March 2007, Lion asked the authority which had prosecuted Bristol for details of the conviction. It is obvious that Lion knew something about these convictions but it is not possible to say when it knew. It is also not possible to say that Lion knew that Bristol had failed to disclose the convictions in its PQQ.
  72. Lion asked Firebuy to tell Lion whether Bristol had disclosed the convictions. Firebuy was slow to state the full position. Eventually, on 15 June 2007, Firebuy stated that when Bristol’s PQQ was initially being considered some members of the panel acting for the procuring authority thought “that Bristol had been involved in litigation”. It is not clear whether those members thought that Bristol had been convicted of relevant offences. There was evidence that one member of the panel had been informed in May 2003 of Bristol’s convictions. The panel thought that the information it had was “hearsay” and they did not ask Bristol for elucidation. Firebuy’s letter of 15 June 2007 contained a number of other statements about the relevance of the convictions and several other matters to which I think I need not refer.
  73. There is more relevant information in Mr Brewer’s first witness statement. Following questions raised by Lion, Firebuy raised the matter with Bristol. Mr Brewer stated: “we did not get a full and frank response from Bristol straightaway.”
  74. Eventually on 24 April 2007 Bristol informed Firebuy of the detail of the convictions. Mr Brewer and Mr Taylor (of Firebuy) thought that Bristol’s statements and accompanying reassurances meant that the situation was not so serious as to disqualify Bristol at that point. But in addition, Mr Brewer caused there to be convened an emergency meeting of the Firebuy board on 15 May 2007 to consider the matter further. Mr Brewer explains in his statement the considerations which were raised at the board meeting. The Board voted, by a majority, to retain Bristol as the preferred bidder.
  75. This issue involves two separate areas for consideration.
  76. The first is: was it open to Firebuy to treat Bristol as an eligible bidder, given that the PQQ stated that the provision of false information would mean that the application to qualify as a bidder would be “invalidated”? The argument goes: if Bristol did not make a valid application at the PQQ stage, then they can not qualify at that stage and they could not be, and therefore should not have been, invited to negotiate at the subsequent stages and they could not and therefore should not be chosen as the preferred bidder.
  77. The second area for consideration relates to the decision made by the panel of the procuring authority not to seek elucidation from Bristol at the PQQ stage and to the decision made by the Firebuy Board in May 2007 to retain Bristol as the preferred bidder.
  78. The first topic involves the interpretation of the terms of the PQQ. This point has been argued before me. In my judgment, I should decide this point and not ask myself whether there is a sufficiently strong case to go to trial and to justify the grant of an injunction pending trial.
  79. If one reads the words in the PQQ; “providing false information will invalidate this application” in isolation, those words seem to say that a PQQ containing false information will mean that there has not been a valid application at the PQQ stage and, prima face, a case where there is no valid application is the same as a case of no application.
  80. If one reads the words in isolation and reaches this result, it is plainly a result which could cause considerable practical difficulties for any procurement process. A PQQ may contain false information but that matter may not be discovered until very much later. As this case shows, a procurement process can be lengthy and complicated and involve heavy expenditure for the procuring authority and for the bidders. It it were to emerge at a late stage in such a process, say, just before a contract is awarded to a bidder that that bidder could not be considered because of wrong information at the PQQ stage, the considerable practical difficulties are obvious. The impracticability of the result would be all the greater if the word “false” in the PQQ extended to a case of innocent misstatement and was not confined to deliberately false statements. Further, this result is inflexible and does not admit of any discretion in the case of minor misstatements as compared with seriously misleading statements.
  81. In any case, the word “invalidate” is not to be read in isolation. One has to consider the remainder of the language of the PQQ.
  82. The second part of paragraph 12 of the PQQ indicates that false information may, but not must, result in a bidder being disqualified. This gives the procuring authority a discretion. The authority can distinguish if it sees fit between deliberate falsehood and accident. It can distinguish between serious and trivial misstatements. The position appears to be described in the same way in Section H of the PQQ. Thus, if one were to read the word “invalidate” as insisting on automatic disqualification whatever the circumstances, that reading would conflict with the other provisions in the PQQ.
  83. Mr Hirst QC (who appeared with Mr Robertson and Miss Mance on behalf of Lion) ingeniously suggests that the references to the discretion to disqualify are references to a case where the first application is automatically invalid and the bidder then puts in a second valid application; in such a case, he says, the authority then has a discretion to disqualify the bidder because of his first invalid application containing a false statement. I regard this submission, as I have stated, as more ingenious than realistic. I would not accept it.
  84. In my judgment, it is not difficult to read the statements in the PQQ as a whole so as to confer on the authority a discretion as to how to deal with a case of wrong information in the PQQ. Such a reading makes good sense; the alternative reading does not.
  85. Accordingly, I conclude that the procuring authority had a discretion as to how to deal with the fact that Bristol did not disclose its convictions in the PQQ.
  86. As the matter was one for the discretion of the procuring authority, the court cannot intervene unless the exercise of discretion by that authority was manifestly wrong. I do not think that can be said of the decision of the LFEPA at the PQQ stage nor of Firebuy at its board meeting in May 2007.
  87. As a footnote, to the above, there may all along have been a short answer to this head of challenge. If Bristol had been excluded by Firebuy, the under-bidder would have been promoted to first place and Lion would have come second and, as such, would not have won the bid. I have not put this forward as a complete answer to this point because, as will be seen, it will be necessary to look at the gap in the score between Bristol and Lion for the purposes of some of the other points which need to be addressed. The submissions at the hearing involved a comparison between Bristol’s score and Lion’s score. If Bristol had been eliminated on account of its criminal convictions then it would become necessary to consider the possible effect of Lion winning on some of the other points for the purpose of a comparison of Lion’s score with the score of the underbidder. SCORING METHODOLOGY
  88. The issue as to scoring methodology entered this dispute at a very late stage. It appeared in a witness statement made by Mr Robinson, of Eversheds, the solicitors for Lion, the statement being dated Saturday, 15 September 2007. The hearing in this case began on Tuesday, 18th September 2007. Mr Robinson’s witness statement runs to 28 pages and exhibits more than 200 pages of documents.
  89. I was asked to exclude Mr Robinson’s statement on the ground that it was too late for Firebuy to be expected to deal with it. Mr Bowsher QC (who appeared with Mr Williams on behalf of Firebuy) said that the late service of this statement was part of “an ambush”. Mr Hirst submitted that Mr Robinson was not able to prepare his statement until he had sight of documents made available on disclosure by Firebuy in late August 2007. I indicated that I was minded not to exclude evidence if it were possible for the other party to deal with the matter. I appreciated that this approach would put a heavy burden on Firebuy but I was prepared to wait and see how the matter developed.
  90. In the event, Firebuy served a witness statement in response from Mr Brewer on the 20 September 2007, that is, during the hearing of this application. There has been no further response to Mr Brewer’s statement.
  91. The lateness of the emergence of this issue and the rush with which Firebuy has had to respond has contributed to the difficulty of deciding on the right response to this evidence.
  92. The evidence on scoring methodology is lengthy. I will not attempt to summarise all of Mr Robinson’s witness statement but I will refer to the essential points.
  93. As I have said, Mr Robinson is a solicitor. He states that he is experienced in EU and procurement law. In so far as his statement deals with matters of fact, I can plainly have regard to it. In so far as his statement sets out mathematical calculations, then again his evidence can be considered. In so far as he expresses opinions on which scoring methodologies should be adopted to meet particular circumstances, I will obviously consider his reasoning process but I think it would be wrong to elevate his views to the views of an expert on scoring methodologies or the views of a statistician. Mr Robinson repeatedly states that there were features of the scoring in this case which were not “fair” and that the bidders were not treated equally. As a preliminary comment on that approach, I do not think that that approach is particularly helpful. The subject matter of this issue involves a matter of evaluation by the procuring authority. The court can interfere with the decision of the procuring authority, if the decision is manifestly wrong. The fact that one scoring system favours one bidder as compared with an alternative system does not, ipso facto, make it manifestly wrong. There must be something else wrong with the system before the court could reach the conclusion that it is manifestly wrong.
  94. Mr Robinson explains what he means by absolute scoring and relative scoring. He explains what he means by linear scoring and modular scoring; he shows that these methods can produce widely different extents of differential between the scores of the various bidders. He explains the method of ranking bids as first place and second place etc and then awarding points to the various places. He describes how Firebuy weighted the importance of different garment items having regard to their specific function. He refers to the fact that Firebuy marked some subject matters using one methodology and other subject matters using a different methodology.
  95. Mr Robinson refers to the fact that Firebuy awarded overall scores to an ensemble of individual garments and to the further fact that some bidders submitted 3 ensembles (which were then scored separately from each other) whereas Lion submitted only 1 ensemble.
  96. Mr Robinson then submits that the use of a non-linear scoring method for garments altered the pre-disclosed weightings which had originally been given to garments as compared with, say, price or service delivery. He says that scoring price on a linear basis and garments on a modular basis was wrong and unfair to Lion. He carries out detailed and painstaking calculations to show that linear marking and the form of modular marking chosen by Firebuy in relation to garments produces very different answers. If the results of the assessment of garments are in a “cluster”, a linear method would show scores in a cluster whereas Firebuy’s method shows the results significantly separated as between the best and the worst in the cluster. He also draws attention to the fact that because a bidder submitted, say, 2 ensembles and in each ensemble used the same item such as a helmet, that helmet is marked twice. If it is the best helmet, both are in joint first place. The next best helmet is in third place even though it is the second best helmet.
  97. I will now refer to the statement for Mr Brewer, the Chief Executive Officer of Firebuy. There were obvious time constraints on the preparation of this evidence. Mr Brewer does not deal with Mr Robinson’s statement, point by point and figure by figure but he summarises his position. I will read some of the paragraphs as follows.

    “I have to say that I am surprised that that is now how Lion puts its case. Although I have had very little time to prepare substantial evidence to rebut the proposition, I must say that in the thirty years I have worked in Government, much of it dealing with procurement, I have never before had such a proposition suggested to me. It would lead to the conclusion that all procuring authorities would be bound to select and limit themselves to one scoring methodology for all different areas within a particular tender, whether or not that methodology was in their view the most appropriate way of establishing which tender submitted the most economically advantageous tender.

    In my experience, it is quite usual to adopt different scoring methodologies in different assessment areas in the way that was adopted by the ICP. The reason for this is, I would suggest, quite obvious and quite rational. It is sensible and usual to adopt a linear scoring progression in relation to price, as a linear scale will capture and appropriately reflect the differences between bidders’ prices. However, in relation to other parts of an assessment, it may be necessary to adopt some other approach to capture relevant differences and to differentiate effectively between bidders. That is particularly so where the results of that part of the assessment are likely to fall in a narrow range when ranked on a linear scale, and where a linear scale would not properly differentiate between bidders on the characteristics being assessed. Examples from my personal experience include the following: procurement of occupational health services, scientific services, consultancies and legal services. In each case, price has been amenable to assessment on a linear scale with the different technical characteristics of different health providers (which may have different solutions to the same procurement issue, for example, by providing different facilities and a different number of staff), consultancies, scientific service providers and law firms being scored on a different basis to provide a mechanism that distinguishes between different bids. In each of these cases (as with the comfort and dexterity of garments – see below) there is a subjective element which needs to be assessed and differentiated.

    Applying that to the ICP, it was as I have said entirely logical and appropriate to adopt a linear scoring system on price. However, in relation to the garment trials, “raw” test data had to be translated into some sort of scoring system in order to facilitate the evaluation of different bids. There were obviously a range of recognised scoring systems available to the ICP. The reason for adopting a modular scoring system was twofold. First, the differences between measured performance in relation to garments sometimes appears very small, and results can therefore become clustered. However, those apparently small differentials can translate into much more significant and important differences in performance, in many instances with important implications for fire fighter comfort, dexterity and health and safety. In order to ensure that these effects are recognised it is important to adopt a scoring system which differentiates effectively between results. A modular system does exactly that.

    A second and related point is that some of the matters being assessed, such as comfort and dexterity, were necessarily assessed on a qualitative basis, and a modular system is obviously suitable for the assessment of such matters, not being capable of precise measurement.

    I should also point out that the methodology used was devised by the GTWG which consisted of a number of technical experts within the fire service and was endorsed by the full ICP Board. In other words, full consideration was given to what approach should be taken by a significant number of appropriately qualified technical staff.

    It is right to say that this approach translates a certain quantified value into a ranking or position, and I understand this to be one of Lion’s criticisms. As I have explained, this is a common and orthodox scoring technique adopted for example where it is thought that a raw quantified differential will not give adequate visibility to important differences between bids. I have made such inquiries as I have been able to make in the time available with a view to demonstrating that this is a widely held view, and far from “unique” or “special” as Mr Hirst has suggested to the Court. To that end, I have asked Peter Marshall, professional services manager at Commerce Decisions Ltd, a consultancy providing expert assistance in relation to evaluation and management of procurement projects and subsequent contract management ( … ) to comment on his experience of bid evaluations that incorporate different methods of scoring for different areas of the evaluation. He has written an email to me today to explain and confirm that multi-methodology scoring approaches are common in procurement in this country.”

  98. Mr Brewer exhibited a short statement from Mr Marshall who said:

    “Some examples of the varieties of scoring methodology which we have experienced are listed below.

    In most evaluations of “complex” goods and services it is necessary and desirable to investigate the value (to the acquirer) of the technical solution being proposed (e.g. its “capability”, “utility” or “compliance”), the price/cost of the solution and terms associated with its acquisition.

    Whilst not universal, it is common practice for our clients to combine the price/cost and technical parts of a supplier evaluation in order to derive an overall score for each bid. It is common practice to call this overall measure the “value for money” of the proposal. This is often done as well as measuring the “compliance” of each proposal against a set of pre-defined minimum technical or commercial requirements.

    It is common practice, and I believe entirely appropriate, to combine the technical and price/cost aspects of an evaluation to derive an overall score. This is often done even where the technical and price/costs aspects have been evaluated using different scoring methodologies.

    It is also common practice to score the technical part of an evaluation against a numerical or adjective based scale with a number of pre-defined or calibrated points designed to measure the “capability”, “utility” or “compliance” of the solution. An example would be a 0-10 scale with definitions against some, or all, of the points. Another example would be the four point scale: “Excellent”; “Adequate”; “Barely Adequate” or “Not adequate”. This type of evaluation assesses bids by allocating to them a score at one of the defined points on the scale (10 or 9, or Excellent or Adequate), but not allowing part scores (such as 9.5). A bidder can only achieve a score at one of the pre-defined points on the scale.

    It is also common to convert an evaluation of actual “real world” performance data to a numerical or adjective-based scale. This occurs and is in my view legitimate even in cases where the conversion to a numerical or adjective-based scale will result in scores for various bidders with a higher comparative difference that (sic) the underlying real-world performance data. This might be desirable to achieve a particular effect, such as to achieve differentiation between bids on a particular aspect where there are only likely to be small differences between the real world performance data of the various bidders.

    When measuring price or cost it is almost universal practice to measure it in absolute currency terms (e.g. “unit acquisition cost” stated in £, or “whole life cost” stated in £, or “risk-adjusted price” stated in £.)

    When combining the technical and price/cost parts of an evaluation it is therefore nearly always necessary to find a way of converting the price/cost into a score so that this score can be combined with the technical score in accordance with their relative weights. There are many methods used to conduct this conversion; a common one used is to award the cheapest bid a 100% score for the price/cost criterion and every other bid a proportional score (e.g. a bid that is twice as expensive would be awarded a 50% score for the criterion).”

  99. Mr Brewer then referred to the testing of ensembles and made these points:

    “In Mr Robinson’s first statement, he makes certain criticisms which relate to the way in which ensembles were scored. In that regard, I would like to draw attention to certain passages in the new British Standard BS 8469 (2007) – “Personal protective equipment for firefighters – assessment of ergonomic performance and compatibility-requirements and tests methods”. As Dr Claire Millard noted in her evidence … parts of the ICP garment tests have been incorporated into that standard. The British Standards Institute (“BSI”) is an independent national body which represents the UK view on standards in Europe and internationally … . It provides an independent view of the best methods for (in this case) testing of PPE.

    The significance of this standard is that the BSI has considered the methodology adopted by the ICP in a detailed, independent review, and concluded that that methodology was sufficiently robust that it would endorse it. It says that:

    “The general approach and the testing methodology included here has been developed under the DTI Consultancy Drafting Scheme, and incorporate practical experience gained during a major contemporary assessment of firefighters’ PPE ensembles [i.e. the ICP]“

    The BSI goes on to make a number of observations which are pertinent to various allegations made by Lion in this proceeding. In BSI’s view, testing of ensembles is preferable to testing individual elements. It concludes:

    “This standard has therefore been prepared to enable firefighters’ PPE ensembles to be evaluated and objectively assessed for ergonomic performance as a complete ensemble, rather than in their component parts….”

    “It specifies the testing of individual items of the PPE as an ensemble so that the compatibility of the individual items can be evaluated and any adverse interactions between the individual items can be identified.”

  100. In certain respects, Mr Brewer’s statement is rather more general than specific. However, he was required to prepare it at very short notice and, in the light of that, I am minded to take it at face value and not exhibit scepticism on the ground that it would have been more helpful to have had more supporting detailed reasoning. MY CONCLUSION ON SCORING METHODOLOGY
  101. The scoring of the various different ingredients of the bids involved evaluation of the performance of the various bidders in relation to those ingredients. The weighting of components such as garments, service delivery and price, were declared in advance. The declared weightings were applied. Those weightings were not changed just because different scoring methodologies were used for the different ingredients which made up those components.
  102. As the matter is one involving evaluation, the body which should carry out the evaluation is Firebuy and not the court. The court will interfere with Firebuy’s decision if it is manifestly wrong.
  103. In this case, the personnel at Firebuy who selected the scoring method were experienced in what they were doing. They obviously gave the matter very considerable thought. That does not of itself mean that they got it right but it does cause me to be cautious before reaching a conclusion that they were manifestly wrong or that an injunction should be granted suspending this procurement process on the basis that there is a sufficiently strong case that they were manifestly wrong.
  104. On the strength of the evidence given by Mr Brewer, I do not think that Mr Robinsons’s witness statement has done enough to show a sufficiently strong case of manifest error on the part of Firebuy. He is not a statistician. His mathematics may be right. If so, they demonstrate that different methods produce different results. But that fact is fully accepted by Mr Brewer and Mr Marshall. The mathematics do not of themselves establish that one method is wrong and one method is right. Much less do they show that one method is manifestly wrong so as to entitle the court to intervene.
  105. On the evidence at present before the court on this issue, I would not hold that Lion will succeed at trial on this issue. What will happen at trial is wholly speculative because it is likely that the evidence at trial will be radically different from that which has been prepared at such short notice, on both sides, for the hearing of this application. If Lion wish to continue to a trial, it is likely they will consult a statistician. I cannot predict if a statistician will support all or part only of Lion’s cause or with what degree of conviction. Accordingly, I regard Lion’s case as essentially speculative at the present time.
  106. It is also relevant to comment that, based on Mr Brewer’s evidence, the Firebuy personnel were expert in this matter and must have fully appreciated the consequences of their scoring. It is possible that they got it manifestly wrong but I believe that I am entitled to consider the inherent improbability of that being the case.
  107. My overall view is that Lion has so far demonstrated a weak ground of challenge on this point. I will return to that matter when I consider the balance of convenience. THE TECHNICAL FILES
  108. It is convenient to deal with points of detail as to the scoring of the technical files at this point. Lion’s complaint about the detail of the scoring of the technical files (apart from the more general topic of scoring methodology which I have already dealt with) is explained in Mr Tyrrell’s second witness statement at paragraphs 54 to 64. As this was served on 30 August 2007, Firebuy had some time before this hearing to deal with the detail. It has produced an answer to Lion’s complaints which has been prepared by Mr Silk and is in painstaking detail.
  109. What emerges from the evidence is that Firebuy approached the matter in a way which cannot be challenged save that Firebuy made a few mistakes in the scoring of the many items in the technical files. If those errors were corrected, there would be minimal impact on the overall result. THE NON-STRUCTURAL TUNIC
  110. Lion’s complaint under this head only entered into this dispute when it appeared in the second witness statement of Mr Robinson which was served on Monday 17 September 2007, the day before this hearing started on the 18 September 2007. As before, Mr Bowsher asked me to disallow this evidence but when I indicated that I would not necessarily take that course, Firebuy was able to prepare and serve a witness statement from Mr Brewer (his third) on 20 September 2007 which dealt shortly with this point. Accordingly, I will describe the state of the evidence on this point.
  111. The PPE in this case included a tunic or tunics to be worn by the fire fighter. There is a difference between a structural tunic and a non-structural tunic. The structural tunic is appropriate where the fire or incident being dealt with does, or might, involve buildings or structures whereas the non-structural tunic is appropriate for a fire or incident in open country.
  112. Lion complains that when Firebuy assessed the second set of bids (these were the relevant bids) made by the various bidders, Firebuy compared a price put forward by Bristol which was for PPE including a structural tunic but not including a non-structural tunic with a price put forward by Lion for PPE including a structural tunic but also including a non-structural tunic. As it happened, Lion’s price was lower than Bristol’s price but Lion points out that if the comparison had been between Bristol’s price and Lion’s price for PPE not including a non-structural tunic, then the comparison would have been even more favourable to Lion.
  113. In fact, Lion’s basic allegation of fact in this respect is correct although I think that I should explain how this situation came about before considering the consequences.
  114. At the ITN2 stage, Firebuy stated what garments should be included in the different bids which should be made by the bidders. Paragraph 8.5.2 of ITN2 was a list of garments and the list referred to the structural tunic and to the non-structural tunic.
  115. Paragraph 8.5.7.1 of ITN2 stated that bidders should show their prices as annualised figures in their financial models, that is, so much per fire fighter for the full year.
  116. In October 2006, Lion made its first bid in response to ITN2. Mr Brewer in his third witness statement stated that Lion bid a price of £1.01 per fire fighter per day or some £368 per fire fighter per year.
  117. Following a Bid Development Day in December 2006, Bristol asked a clarification question (No. 89) of Firebuy. The procedure under ITN2 was that answers to clarification questions could in certain circumstances be published to all bidders in which case they superseded the statements in ITN2.
  118. Question no 89 reads as follows:

    “Clarification Question 55 told us that the PPE issue per Fire Fighter for non-structural PPE was TBA and implied that we should include non-structural tunic only. Is it FiReBuy’s intention that a non-structural tunic only should be included in the model for the categories AB/AC/AD? Additionally, for the National price per Firefighter, it means that FRAs specifying no Wildland or Technical Rescue/USAR kit are paying for those that have”.

  119. The price which was of principal relevance for the purpose of comparing bids was the price for Category AA.
  120. The answer to question 89 was

    “The point raised about FRAs not requiring these additional PPE categories subsidising those that do is well made and that was certainly not FiReBuy’s intention. Bidders should exclude all non structural PPE clothing items from the FMS financial model but where they have previously included them, they may show the marginal cost to FRAs as an option separately from the Unitary Charge”.

  121. It seems fairly clear from this question and answer that what was required to be done for the relevant part of the bid was that the bidder should give a price, on an annualised basis, i.e. per fire fighter per year, for the FMS category AA, for PPE which included a structural tunic and did not include a non-structural tunic. It was also open to the bidder to show the marginal extra cost if one were to include a non-structural tunic.
  122. Bristol complied with the direction in the answer to question no 89 and Firebuy correctly scored the price that Bristol gave.
  123. I need now to describe what Lion did as part of its second bid following BDD and the answer to question no 89.
  124. In its second bid, Lion included a document called a “Financial Annex” which contained this text:

    “Lion’s original pricing in respect of Fully Managed Service (FMS) options for both the Mandatory Standard Bid (MSB) and Variant Bid options have been changed to show the price relationship on a price per slot per day basis in respect of “Structural” PPE Category AA and the other “Non-Structural” PPE Categories AB-AC-AD.

    As can be noted this offers a considerable price reduction for the “Structural” PPE category AA option for those FRAs not requiring wildland and/or rescue options. This does not of course reduce the overall pricing metric as it would be questionable to now do so at this stage of the Tender deliberations.

    Re-presenting the Lion offer and showing the pricing differential between the respective PPE Categories in this way, the preferred options can be more readily assessed by the Contracting Authority and of course by FRAs in due course.

    In respect of MoDFS the overall Bid price remains unchanged albeit the service delivery model and scale of PPE provision has been reviewed to meet the recently confirmed revised requirements of the Service (Refer to: SD ROR 13.31 revised).”

  125. On the second page of this document, Lion used the heading “ICP Pricing Metric” and stated that for the National Bid the figure for FMS was £1.01. Lion then stated that there were “FMS Breakout Prices” which, for the National Bid were £0.90 for “Structural” and 0.11 for “Non-Structural”. I suspect the reference to “metric” should be a reference to “matrix” i.e. framework.
  126. By the end of the hearing, I could see what Lion meant. I could see what Lion meant because these pages have been explained to me by Mr Hirst. What Lion was saying was that the exclusion of the non-structural tunic would result in a considerable price reduction for those FRAs who wanted to buy PPE including the structural tunic but excluding the non-structural tunic. Lion was not going to alter the make up of its prices and so it would not alter the pricing framework or “metric” and so its framework would show the price excluding the non-structural tunic and then show the marginal cost for the non-structural tunic. On this basis, the figure of £1.01 which was described as being the National Bid could be seen (by reference to the breakout prices) to be £0.90 where the non-structural tunic was excluded and £1.01 when the non-structural tunic was included.
  127. Lion’s second bid does not appear to have shown the annualised figure asked for in ITN2. However, in view of my understanding of what Lion intended, it can be see that the annualised figure excluding the non structural tunic was not about £368 but was about £328.
  128. There is no doubt that Firebuy compared Lion’s price of £368 with Bristol’s price. The correct comparison in the light of what Lion intended was the price of £328 with Bristol’s price.
  129. Mr Hirst suggested that the evidence showed that Firebuy had compared figures from Lion and Bristol which Firebuy knew were not like for like. I do not accept that interpretation of paragraph 5.6 of Mr Brewer’s third witness statement. What I read Mr Brewer as saying is that Firebuy thought that Lion was leaving its price for the relevant part of the bid at £1.01 per fire fighter per day and was stressing that it was not changing its price which, if one wanted to find an annualised price, remained the annualised price in the October 2006 bid of £368. Firebuy was quite clear that Lion was bidding £368 and it did not occur to Firebuy that one should arrive at Lion’s bid by picking the break out figure of £0.90, multiplying it by 365, and arriving at some £328.
  130. Mr Hirst made it clear that he was not submitting that Firebuy were acting in bad faith.
  131. As part of the written debrief on 27 April 2007, Firebuy explained to Lion that it had compared Lion’s price of £368 with Bristol’s price. The debriefing document also show the Bristol price. Mr Bowsher submitted that on 27 April 2007, Lion knew that the figure being used was £368 and not £328 and that Bristol’s quoted figure was for PPE which excluded the non-structural tunic. The first part of that submission is correct but the second is not. Lion do not appear to have appreciated that its figure of £368 was being compared with a Bristol figure on a different basis. If Lion had appreciated that, I think it is certain that they would have raised it at once. Lion only realised there was a point of the present kind when it obtained a considerable number of further documents following disclosure in late August.
  132. What then are the consequences? If Lion had clearly stated its position and Firebuy had misunderstood it, then the court could intervene on the grounds that Firebuy had made a manifest error or, if this is different, an error of fact.
  133. In my judgment, whilst I am now quite clear as to what Lion was trying to say in its bid, it did not say it clearly at the time. In good faith, Firebuy understood the bid in a way different from that intended by Lion.
  134. What if Lion’s bid was unclear and Firebuy read it one of the possible ways it could have been read? It seems to me there are various possible approaches. One approach is for the court to construe Lion’s bid objectively and say what it means on that basis. If it meant, objectively speaking, that Lion was bidding £328 and Firebuy read it as a bid of £368, then it can be said that Firebuy was wrong and the court should intervene. Another approach is to say that Firebuy’s reading of a bid which was not completely clear should not be interfered with if it was a reading that a reasonable authority could have arrived at.
  135. In my judgment, it is safer not to come to a conclusion as to the approach which is to be adopted nor, indeed, as to the possible answers on the alternative approaches. This is because I find that such considerations do not affect the ultimate result for the reasons I will now endeavour to explain.
  136. Regulation 32(2) of the 1993 Regulations gives Lion a cause of action if it can show that in consequence of the breach of duty by the authority, Lion suffers, or risks suffering loss or damage.
  137. The case was argued before me on the basis that the cause of action was not complete unless Lion can show the necessary causation of damage or risk of damage. Conversely, if it should appear that something had gone wrong but it had not (or could not have) affected the result, then there would be no cause of action. Mr Bowsher drew my attention to the decision in DE VILBISS MEDEQUIP LIMITED V NHS PURCHASING AND SUPPLY AGENCY [2006] EuLR 346 at paragraphs 67 and 68 where the requirement of causation of damage to complete the cause of action and the relevance of the non-proof of causation of damage, where there is a claim to interim relief, is explained. I am not wholly clear whether the learned judge in that case was saying there was only a cause of action if it was shown on the balance of probabilities that the bidder would have succeeded or whether he was accepting that it would suffice if it were shown that the result might have been different and the bidder could have won the bidding and been selected. If the learned judge was saying the former, that might be inconsistent with earlier English authority (see MATRA [1999] 1 WLR 1646 at 1656) which was apparently not cited in De Villbiss. In any event, if the procuring authority can show that the alleged breach has not caused any difference, then there is no cause of action and no basis for interim relief.
  138. The question of what difference there would have been is considered by Mr Brewer in his third witness statement. He says:

    ” … Firebuy has also considered the maximum potential implications of the issue for Lion’s score. I note that in paragraph 40 of his statement, Mr Robinson claims that the issue would have affected its score by 3.2% overall. There are no workings set out in relation to this figure, and so I am unable to comment on how it is arrived at, but according to our calculations, this greatly overstates the significance of the issue.

    TTHB5 at pages 4 to 5 sets out a calculation prepared by Mr Critchley, showing the maximum possible implications of this point. On the basis of that calculation, one can see that if the point is correct, and no change is made to any other bidder’s score, the point would result in a 1% reduction in margin between Lion and Bristol (through a reduction to Bristol’s price score. A similar process would have to be adopted in relation to [the underbidder's] score, which would result in a similar reduction).

    On that basis, one can see that this issue could not have made any difference to the outcome of the competition, as the margin between Lion and Bristol was 5.6%. Indeed, Lion would still have remained in third place behind Bristol and [the underbidder]. To put the point another way, although Lion has now had a very substantial opportunity to analyse critically the scoring of its bid relative to that of Bristol, and to seek to upset Firebuy’s decision, nothing in Lion’s complaints causes me to doubt the robustness of our overall conclusion, which was that Bristol was the successful bidder by a clear margin.”

  139. The result is that in relation to this point on its own, Lion does not have a cause of action and does not have a basis for claiming an interim order to suspend the procurement process.
  140. I will obviously have to stand back at the end of my consideration of the various points to ask whether this point, taken with others, could have affected the result THE CALL CENTRE
  141. The ITN2 laid down certain requirements for the provision of a call centre to be manned 24 hours a day, 7 days a week by the service provider. Lion says that its bid complied with this requirement but that Bristol’s bid did not. Lion also says that the two bids were given the same score when they should not have been.
  142. Although Firebuy has served a Defence alleging that Bristol’s bid complied with ITN2 or that Firebuy was entitled to proceed on the basis that Bristol’s bid did comply, even if it did not, Mr Bowsher on behalf of Firebuy appeared to accept that there was a serious issue to be tried in relation to the basis of Lion’s allegation.
  143. Mr Bowsher therefore concentrated his submissions on the causation point. Could a different treatment of this point by Firebuy have made a difference? He submitted not.
  144. The evidence on the causation issue comes in Mr Tyrrells’ second witness statement, Mr Brewer’s first witness statement, Mr Tyrrell’s third witness statement and Mr Robinson’s first and second witness statements.
  145. Mr Tyrrell in his second witness statement, at paragraph 81, stated that Lion had calculated that the difference between the basis used by Lion and that used by Bristol was worth 0.6% of the total marks awarded to the rival bids.
  146. In Mr Brewer’s first witness statement at paragraphs 28 and 29 explained that the figure of 0.6% had not been correctly calculated and that for the detailed reasons given by Mr Brewer the correct difference was 0.09% and a case could be made for 0.06%.
  147. In Mr Tyrrell’s third witness statement at paragraphs 5 and 43, Mr Tyrrell did not join issue with Mr Brewer’calculation and instead suggested his concern was with the integrity of the process and favouritism shown to Bristol.
  148. For completeness, I should also refer to para 37 of Mr Robinson’s second witness statement where he refers to this point in the context of other points but there is nothing there to suggest that Mr Brewer’s detailed calculation is wrong.
  149. On this basis, Lion has no prospect of showing that they could have won the bid if this point, on its own had been dealt with differently.
  150. As before, I will have to stand back at the end and consider the impact of the various points taken in combination.
  151. As to favouritism, I will also consider that in the round after I have considered the individual matters but I will record at this point that I do not find any serious case that Firebuy was acting in bad faith in respect of this matter. TIER 1/TIER2 AVAILABILITY
  152. The subject of Tier 1 and Tier 2 availability is raised in paragraph 5.3.11.5 of ITN2. As explained in that paragraph, Tier 1 availability is the availability of all required elements of PPE for each fire fighter on shift at all times. Tier 2 availability is the availability of spares for each element of PPE with specified periods of notification.
  153. The issue under this head is discussed at some length in the second, third and fifth witness statements of Mr Tyrrell, the second and third witness statements of Mr Brewer and a short confirmatory comment by Mr Roberts.
  154. In addition to the detailed comments in the witness statements, I was also asked to consider :
       

    • The whole of paragraph 5.3.11.5 of ITN2
       

    • A paragraph in ITN2 dealing with COM ROR2
       

    • A paper prepared by PKF in March 2006 and published in around June 2006
       

    • The power point presentation held in June 2006
       

    • The answer dated 20 June 2006 to clarification question no 42
       

    • The answer dated 21 June 2006 to clarification question no 51
       

    • The answer dated 4 July 2006 to clarification question no 64 and
       

    • The PKF document of 14 July 2006.
  155. Based on ITN2 alone and the PKF paper of March 2006, there appears to be (at the lowest) a case for saying that the times stated in paragraph 5.3.11.5 had to be complied with by bidders whose bids should be prepared and presented accordingly.
  156. However, the answers to questions 42, 51 and 64 do appear to relax the apparent requirements of paragraph 5.3.11.5. For example, in the answer to question 42, it is stated that: “Bidders should not necessarily price against the principles of Tier-1 and Tier-2 availability…”.
  157. Again, in the answer to question 64, there is the statement that: “Bidders will recall that they were asked to comply with the spirit of the availability mechanism proposed within the PKF paper rather than the specific requirements of Tier-1 and Tier-1 availability.”
  158. In these circumstances, it appears that it was open to Bristol to make a bid which conformed to the requirements of the procurement process even if it did not seek to meet the specified time requirements in paragraph 5.3.11.5 of ITN2.
  159. If I am wrong about that last conclusion, it is also relevant to consider what difference if any this point could make to the outcome of the process.
  160. The evidence here is not quite so crisp and clear cut as with the Call Centre point. However, Mr Tyrrell puts forward a figure of 1.8% reduction in price attributable to the more relaxed compliance on the part of Bristol. His figure of an 11% reduction in price for the call centre had produced a difference in the overall marking of 0.6. It would seem to follow that a reduction of 1.8% in price would produce a difference in the overall marking of 0.1. Further, for the same reasons as persuaded Mr Brewer to reduce Mr Tyrrell’s figure of 0.6 to 0.09, the figure of 0.1 would also be significantly reduced.
  161. Thus even if Lion had a better case on the allegation of a breach by Firebuy in relation to Tier 1 and Tier 2 availability, Lion would still fail to show the necessary causation of loss. BRIGADE STOCK
  162. It is not wholly clear whether the issue about the treatment of brigade stock is different from the issue of Tier 1 and Tier 2 availability. At the lowest they appear to be points which overlap each other.
  163. The evidence on the treatment of brigade stock is in Mr Tyrrell’s second witness statement and Mr Taylor’s first witness statement.
  164. In connection with the requirement of making PPE available to fire fighters, Lion put forward its bid on the basis that PPE would be kept in stock at the fire station, at Lion’s regional centres and at other Lion centres. Lion did not assume that a fire authority or brigade would have stock at some central depot from which it could be taken to individual fire stations.
  165. On the other hand, Bristol put forward a bid on the basis that there would be stock in various places including at brigade level.
  166. Lion says that Bristol’s bid was contrary to what all bidders had been told to assume.
  167. This topic was the subject of clarification question no 65. By that question, Lion asked Firebuy to confirm that the standard bid to be made (standard bid is a term explained in ITN2) was to assume that no assistance would be forthcoming from FRAs in achieving the availability criteria of Tier 2.
  168. Firebuy’s answer is in these terms: “It would be prudent to assume that there will be minimal, if any, support from FRAs in achieving the availability criteria as proposed by Bidders. Where Bidders feel that support would be required from individual FRAs and/or the Contracting Authority, then these assumptions should be stated in full to enable the Contracting Authority to take the resulting impact into account during the evaluation phase.”
  169. In this answer the Contracting Authority is, of course, Firebuy.
  170. In my judgment, based on the terms of the answer to question no 65, it was entirely open to Bristol to assume support from a FRA in holding stock at brigade level, provided always that Bristol made that clear in its bid. Mr Tyrrell’s evidence (at paragraphs 85 and 87) states that this was clear from Bristol’s bid. In these circumstances, Bristol’s bid complied with the requirements of the process and it was open to Firebuy to evaluate it accordingly.
  171. For the sake of completeness, I note that Mr Brewer in paragraphs 30 to 35 of his first witness statement has shown that as a matter of calculation, this point even if it had been evaluated wrongly by Firebuy would not have made more than a modest or even marginal difference. FITTING OF GARMENTS
  172. Before the garment tests were carried out, the bidders were given the opportunity to fit their garments on the volunteers who were participating in the garment trials. Each bidder was given about the same length of time for this purpose. Those bidders (such as Bristol) who submitted more than one ensemble did not get more time than those bidders (like Lion) who submitted only one ensemble.
  173. Lion says that the time it was given was too short. It says that its garments were of an innovative design which required more time for fitting than the garments of other bidders.
  174. Shortly after the fitting day, Lion wrote an email to Firebuy praising the arrangements for the fitting day. Lion did not raise any complaint about the time it had to fit its garments. In its evidence, Lion said that the email was sent for reasons of diplomacy and the true situation was that the time for fitting was inadequate.
  175. As to the factual basis of Lion’s claim, I am far from convinced that there was any real practical problem.
  176. Further, a decision as to the time available for fitting was a decision within the discretion of Firebuy. I do not think that Firebuy breached the principle requiring equality of treatment of bidders. In a real sense, Lion had more time than other bidders who had to fit 2 or 3 ensembles. I do not think Firebuy was at fault in not allowing more time to fit Lion’s garments, which it says were innovative, when this point was not drawn to Firebuy’s attention at the time.
  177. Even if there was anything in this complaint, it is now far too late to raise it. The breach which is now alleged occurred in May 2006. There is no question of Lion not knowing at the time the underlying facts on which it now relies.
  178. If Lion were to rely upon an allegation of breach by Firebuy in relation to the fitting days, then it was essential in order to comply with Regulation 32 of the 1993 Regulations to give notice to Firebuy more or less straightaway and, in any case, before Firebuy proceeded any further with the garment trials. Lion did not do so. Further, when Lion issued its first and second claim forms, it did not refer to this alleged breach although in paragraph 57 of its Particulars of Claim in those proceedings, this matter is referred to. That was on 5th July 2007. Assuming in Lion’s favour that this reference in the Particulars of Claim was an effective claim, it was not a prompt claim and was long after the expiry of the 3 months referred to in Regulation 32. There is no prospect of a judge at trial in this matter extending the time from May 2006 to July 2007. FEEDBACK ON GARMENTS
  179. Lion refers to the fact that Firebuy held what was called a Bid Development Day (“BDD”) with all bidders in December 2006. It seems that Firebuy was not obliged under its rules governing the process to hold a BDD but it chose to do so and it appears to be accepted that it was entitled to do so.
  180. At the BDD, each bidder’s bid was discussed with that bidder. I have seen the scripts which show the topics intended to be raised with each bidder. Certain weaknesses, or areas for improvement, were identified and the bidders were given an opportunity to reflect and represent their bids.
  181. The result of the BDD was that bidders could attempt to score better on areas where there were weaknesses in their bid. Lion says that it was first on price at the stage of the BDD but was thought to be weaker on garments. It says that it should have been given a chance to improve its case on garments in the same way as the other bidders were given the chance to improve their cases on, for example, price. This is said to be a breach of the principle requiring equal treatment.
  182. In fact, all the bidders were treated equally. No bidder was allowed to change its bid in relation to garments. All bidders were allowed to change their bids in relation to other matters. There was a good reason for treating garments differently. The garment trials had been conducted at very great length and some expense. The evaluation of the garments was not complete by the BDD. There was not a practical possibility of a bidder submitting different garments and requiring them to be tested. In so far as Lion would have wished to say that its problems in the garment trials all flowed from the original difficulties with fitting its garments, Lion had not considered that to be a problem at the time of the fitting of garments, or, if it did consider it was a problem, it did not point this out to Firebuy. Indeed, it said the very opposite to Firebuy at that time.
  183. In my judgment, there was no breach of the principle requiring equal treatment in this respect.
  184. In any case, on 19 December 2006, Lion knew the approach being taken by Firebuy in relation to garments and other matters. There had been some comment on how well Lion had done in relation to garments. On the evidence before me I am very doubtful whether Lion was given any indication that it would have more feedback on garments before it was required to continue with the process.
  185. As Lion knew that it was not being given a further opportunity to improve its position in relation to garments, if it had wished to complain about that to Firebuy, Regulation 32 of the 1993 Regulations meant that it had to do that promptly or pre-promptly. In that context, it should have complained more or less straightaway so that the point, if there was anything in it, could have been considered by Firebuy before the process moved forward. Lion did not do so.
  186. Even if, about which I am doubtful, Firebuy in some way allowed Lion to believe it would be given further feedback on garments, Lion knew that it was not in fact given further feedback. It knew that by the time it put in its later bid on 29 January 2007. It did not complain at or around that time. It allowed the process to move forward. In my judgment, Lion failed to comply with the notice requirements of Regulation 32. Lion did raise this point in its solicitors’ letter of 12 April 2007 but in my judgment that was too late.
  187. Lion did not complain of this matter in its first claim but it did complain of it in its second claim form on 22 June 2007. Interestingly, the breach is placed as happening by 27 January 2007. I would say that any breach had occurred on 19 December 2006 but in either case, the claim form was not prompt and was not within 3 months of any breach. I do not think the trial judge would extend time in this respect. FEEDBACK AT THE BDD RELATING TO PRICE
  188. This topic was referred to briefly in Mr Tyrrell’s third witness statement and was developed in more detail in Mr Robinson’s second witness statement served on Monday 17 September 2007.
  189. The complaint is, essentially, that Firebuy discussed price with the bidders. It is said that Firebuy encouraged Bristol in particular to improve its bid in relation to price and identified the target price which Bristol should attempt to achieve with its revised bid. competitive on price. That is said to be discriminatory because Lion was not given similar encouragement in relation to price and was not given specific advice as to the areas in which Lion should try to improve its bid.
  190. This point is the subject of a detailed witness statement from Mr Roberts of PKF. He refers to the 4 scripts which were prepared for the 4 bidders which were the basis of what was discussed separately with each bidder at the BDD. As much of this material is highly confidential, I will not spell out all of the detail in this judgment.
  191. Mr Roberts explains how Firebuy worked out for itself a “shadow bid” to help it predict the level of bids and to enable it to assess the detailed make up of bids. This produced a “comparator” price to be compared with the prices which turned out to be bid.
  192. At the BDD, each bidder was taken through the subject matter of its script. The scripts dealt with a large number of matters for each bidder. All bidders were given the same general information. The scope of the feedback was uniform but had to vary depending on the different features of the different bids which had been made. All bidders were told the band within which the comparator price lay. This did not involve any bidder being told of the approximate size of Lion’s bid on price.
  193. After the BDD, each bidder received a letter dated 22 December 2006 from Firebuy. The letters were in similar form and reflected the feedback at the BDD with that particular bidder.
  194. It was for each bidder to reflect on what had been communicated at the BDD. The bidders did make many changes to their bids. Bristol became more competitive on price but Lion was still first on price. Lion changed its bid in relation to service delivery and non-price commercials. It improved its overall score by a greater margin than did Bristol.
  195. In my judgment, this evidence does not reveal any breach of the principle of equality of treatment.
  196. Further, Lion was aware on 19 December 2006 of the essential nature of the process which was undergone at the BDD. In a note prepared on behalf of Lion immediately after its meeting with Firebuy, the question was raised internally in the Lion camp: “…is it fair that bidders are being given a seond bite of the cherry, but in particular, that each bidder is being told which areas it must improve on?”
  197. Lion did not take any action to follow up the concern expressed in this note. It did not serve any notice under Regulation 32 to require Firebuy to act differently or to think again. It allowed the process to continue. It did not therefore comply with Regulation 32 promptly or pre-promptly in this respect. BREACH OF CONFIDENTIALITY
  198. In the correspondence and in the pleadings, there is a sustained allegation by Firebuy that it imparted to Bristol information which was confidential to Lion which enable Bristol to compete more effectively with Lion.
  199. Mr Hirst did not press this matter at the hearing before me. I have seen the extensive evidence in relation to this. On that evidence, there is no basis for an allegation of breach of confidence by Firebuy. STANDING BACK ON POSSIBLE CHANGES IN SCORING
  200. In relation to the various complaints made by Lion, I have already indicated the differences in scoring which could conceivably result if that complaint were made out. In relation to those complaints which Lion might be able to establish (the non-structural tunic point, the call centre point and the few errors in scoring the technical files) taken with other matters, which I think Lion will not be able to establish (Tier 1 and Tier 2 and the brigade stock points), the maximum improvement in Lion’s scoring would not cause it to eliminate the lead in scoring which Bristol had over Lion (some 5.55 points). Conversely, if Lion’s complaints about the scoring methodology were to be upheld, then that could conceivably change the result but I have assessed Lion’s case on this point as weak. LEGAL MARK UP
  201. I can deal with this briefly. Firebuy made available to bidders the drafts of the documents which would be the subject of detailed negotiation between Firebuy and whoever emerged as the preferred bidder. The bidders were not required to “mark up” the drafts, that is to indicate the amendments they would wish to see if they were selected as the preferred bidder. Conversely, bidders were not prevented from making comments on the drafts by way of a legal mark up.
  202. Lion did not do a legal mark up but Bristol.did. In its overall evaluation, Firebuy referred to the fact of Bristol’s mark up and indicated that it was helpful and would be beneficial if Bristol was the selected bidder.
  203. I do not see anything wrong with what happened in this respect. In any case, the fact of Bristol’s legal mark up was obviously a very minor point. GENERAL FAVOURITISM
  204. At the hearing, Mr Hirst repeatedly said that Firebuy was guilty of showing favouritism to Bristol at the expense of Lion. Many of the points which I have considered above were put forward as examples of such favouritism.
  205. In order to consider a complaint of this kind, it is necessary to see if Firebuy complied with its obligations as to transparency, as to equal treatment and as to non-discrimination. It is also relevant to ask if Firebuy went outside its margin of discretion or appreciation so as to commit a manifest error. It is also relevant to ask if Firebuy was guilty of bad faith so as to amount to a misuse of its powers.
  206. I have endeavoured to carry out that exercise. I have found that Firebuy had not broken the duties on it or misused its powers by showing favouritism to Lion. It follows that there is no surviving case of favouritism to be considered. NOTICE UNDER REGULATION 32 OF THE 1993 REGULATIONS
  207. As will now have been seen, I have in connection with some of the complaints dealt with the issue of notice under Regulation 32. I have done so where the point is clear cut. In cases where the point is not clear cut, and where I have assessed in detail other aspects of the claim, I have not dealt with this point as it is not necessary to do so and would take some time to do so and might well be inconclusive. PROMPTNESS OF ISSUE OF PROCEEDINGS
  208. My comment in relation to the requirement of notice under Regulation 32 applies in the same way here. CONTRACTUAL BASIS
  209. Lion refers to paragraph 7.3 of the ITN2. This deals with the Management of the Procurement Process. It says that Firebuy will “seek to secure” various things such as probity and accountability in the process and the maintenance of the principles of transparency, equality of treatment and non-discrimination.
  210. It is submitted on behalf of Lion that this paragraph in ITN2 gives rise to a contractual obligation undertaken by Firebuy for the benefit of Lion. Based on its pleadings, Lion also appears to submit that one can translate the phrase “seek to secure” into “secure” so that if the specified result does not come about, there will be a contractual liability on Firebuy and, it seems, one would not have to ask whether Firebuy had genuinely tried to secure the specified result. It may be that Lion would put forward an alternative case to the effect that Firebuy had to use some sort of endeavours, whether best or reasonable, to secure the specified result.
  211. In my judgement, the suggestion that the terms of ITN2, or some part or parts of it, had contractual force is without foundation. Paragraph 4.7 in ITN2 makes it clear that the terms of ITN2 do not give rise to a contract between Firebuy and a bidder.
  212. Even without paragraph 4.7 of ITN2, I would not be prepared to hold that the obligations in paragraph 7.3 had contractual force. Those matters are a statement of the obligations on Firebuy under the general law. There is no need to search for another basis, for example a contractual basis, on which to hold that Firebuy is bound by those obligations; it is already bound. Further, given that Regulation 32 of the 1993 Regulations imposes important limits on a bidder’s ability to take action against Firebuy 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. ADEQUACY OF DAMAGES FOR LION
  213. In the event of Lion establishing at a trial that Firebuy had committed a breach of an obligation owed to Lion, I do not think that an award of damages would be an adequate remedy for Lion. Although a court assessing damages in this case would have to do its best, there are, in my judgment, very real difficulties in quantification of the profits that might have been made over 15 years if Lion had been awarded the contract. I am also not completely convinced that Firebuy would be good for the money if a substantial award of damages were made against it. That depends on whether the sponsoring Department would stand behind Firebuy and it is not certain that it would, although it is quite likely that it would. ADEQUACY OF DAMAGES FOR FIREBUY AND OTHERS
  214. It can be argued that if an interim injunction was ordered at this stage and then discharged at the trial, the existence of the injunction would not cause Firebuy to suffer any financial loss of its own. However, I accept that there are real grounds for the fears expressed by Mr Brewer that if the court suspends the process pending trial, that could cause the Integrated Clothing Project to fail and that should be regarded as causing harm to Firebuy, some FRAs and possibly the wider public interest. Mr Hirst says that there can be an expedited trial in December 2007 so that the period of suspension of the process may be relatively short. My own suspicion is that the trial date will drift backwards from December and there may be a delay before judgment is given. There will also be some loss to Bristol if I grant an injunction. If Lion lose at trial and Bristol is awarded the contract, then Bristol’s loss could be said to be attributable to delay but not more grave than that. Overall, I do not think that damages will be an adequate remedy for Firebuy and others whom it is relevant to consider. BALANCE OF CONVENIENCE
  215. What then of the balance of convenience? Often it will be appropriate to grant a negative injunction in the case of a dispute, to hold the ring until the rights and wrongs of the dispute can be determined by a court. It is I think relevant in this case to consider the strength or weakness of the claims which Lion wishes to put forward at a trial. Out of all the claims that it has identified, only one has caused me real concern. That relates to the scoring methodology in relation to garments. Doing the best one can on the material before the court, I conclude that Lion has only demonstrated a weak case for saying that Firebuy committed a manifest error of evaluation so that its decision cannot stand.
  216. In my judgment, that weak case should not be regarded as sufficient to interrupt this procurement process in circumstances where such an interruption might well cause the ICP to fail. OVERALL RESULT
  217. The result is that I decline to make the interim order sought by Lion. FINALLY
  218. I would wish to express my gratitude to counsel for the considerable help they gave me in dealing with the many points of principle and fact which arose in the course of the hearing and for the measured way in which they made their submissions.  

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