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You are here: BAILII >> Databases >> England and Wales High Court (Technology and Construction Court) Decisions >> Aquila Heywood Ltd v Local Pensions Partnership Administration Ltd [2021] EWHC 114 (TCC) (25 January 2021) URL: http://www.bailii.org/ew/cases/EWHC/TCC/2021/114.html Cite as: [2021] EWHC 114 (TCC) |
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BUSINESS AND PROPERTY COURTS OF ENGLAND & WALES
TECHNOLOGY AND CONSTRUCTION COURT (QBD)
Fetter Lane, London, EC4A 1NL |
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B e f o r e :
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AQUILA HEYWOOD LIMITED |
Claimant |
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- and – |
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LOCAL PENSIONS PARTNERSHIP ADMINISTRATION LIMITED |
Defendant |
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Valentina Sloane QC and Joseph Barrett (instructed by Burges Salmon LLP)
for the Defendant
Hearing date: 19 January 2021
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Crown Copyright ©
THE HONOURABLE MR JUSTICE PEPPERALL:
THE FACTS
"By correspondence communicated to the bidders on 14 October 2020, the Authority decided that the Procurement should be rewound to the stage at which tender responses were received and that the Procurement should be re-run from that point onwards, with the tender responses being considered, evaluated and scored by a new evaluation panel... The contract award decision and scoring decisions made in the course of the previous, now overtaken, evaluation (the 'first evaluation') have been withdrawn, are not relied on by the Authority, and are of no legal effect. Accordingly, it is averred that the decisions and matters relating to the now overtaken first evaluation that are subject to challenge in the [Particulars of Claim] no longer have any legal status or effect and have been overtaken by events. The alleged breaches are academic and not actionable as the challenged decision was withdrawn and the Claimant has not suffered and/or does not risk suffering, loss or damage. The Authority therefore does not plead further in respect of these matters. Further or alternatively, the proceedings are academic and/or [Aquila] is not entitled to the relief claimed, or any relief. In the premises, the proceedings should be discontinued."
THE APPLICATION
THE LAW
"95. Contract making suspended by challenge to award decision
(1) Where—
(a) a claim form has been issued in respect of a contracting authority's decision to award the contract,
(b) the contracting authority has become aware that the claim form has been issued and that it relates to that decision, and
(c) the contract has not been entered into,
the contracting authority is required to refrain from entering into the contract.
(2) The requirement continues until any of the following occurs–
(a) the Court brings the requirement to an end by interim order under regulation 96(1)(a);
(b) the proceedings at first instance are determined, discontinued or otherwise disposed of and no order has been made continuing the requirement (for example in connection with an appeal or the possibility of an appeal).
(3) This regulation does not affect the obligations imposed by regulation 87.
96. Interim orders
(1) In proceedings, the Court may, where relevant, make an interim order–
(a) bringing to an end the requirement imposed by regulation 95(1);(b) restoring or modifying that requirement;(c) suspending the procedure leading to–
(i) the award of the contract, or
(ii) the determination of the design contest, in relation to which the breach of the duty owed in accordance with regulation 89 or 90 is alleged;
(d) suspending the implementation of any decision or action taken by the contracting authority in the course of following such a procedure."
"The modern approach to statutory construction is to have regard to the purpose of a particular provision and interpret its language, so far as possible, in a way which best gives effect to that purpose… In seeking the purpose of a statutory provision, the interpreter is not confined to a literal interpretation of the words, but must have regard to the context and scheme of the relevant Act as a whole..."
THE EFFECT OF EXEMPTION FROM THE OBLIGATION TO ALLOW A STANDSTILL PERIOD
"Subject to paragraphs (5) and (6), a contracting authority shall send to each candidate and tenderer a notice communicating its decision to award the contract or conclude the framework agreement."
19.1 First, there is nothing in regulation 95(1) to limit the automatic suspension to cases not falling within one of the exemptions to regulation 86(1).
19.2 Secondly, the automatic suspension plainly arises where the three conditions enumerated in regulation 95(1) are met. There is no doubt that those conditions were met upon LPPA's becoming aware of the issue of Aquila's claim, and it is impossible to read into the regulation some further requirement that the case did not fall within an exemption to regulation 86(1).
19.3 Thirdly, even if I am wrong as to the first and second points, regulation 86(5) does not prevent a contracting authority from giving notice pursuant to regulation 86(1). Indeed, in this case LPPA elected to do so and specified a standstill period.
19.4 Fourthly, there is in any event no reason of principle or policy why regulation 95(1) should not apply in a case that is exempt from the obligation under regulation 86. Of course, if no standstill period is allowed because the case falls within such an exemption, it is axiomatic that it will be less likely that the unsuccessful bidder will be able to move quickly enough to issue and give notice of a claim before the award of the contract. That is not, however, a reason for reading into regulation 95(1) some additional requirement beyond those expressly identified by the draftsman.
THE LIMITS OF THE SUSPENSION
THE PROPER COSTS ORDER IN THIS CASE