The Halo Trust v Secretary of State for International Development [2011] EWHC 87 (TCC)

[2011] EWHC 87 (TCC)Case No HT-11-17
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 27 January 2011
Before
MR JUSTICE AKENHEAD
Between
THE HALO TRUSTClaimantTHE SECRETARY OF STATE FOR INTERNATIONAL DEVELOPMENTDefendant
Mark Clough QC (instructed by Brodies LLP) for ClaimantJames Goudie QC and Jennifer Skilbeck (instructed by CA Legal) for DefendantHearing Hearing date: 20 January 2011
JUDGMENT

Introduction

[1]The presence of landmines, often in poor and disadvantaged countries throughout the world, has rightly attracted widespread concern and humanitarian intervention, particularly over the last 30 years. This case is concerned with a public procurement exercise by the Department for International Development (“DFID”) in 2010 in relation to mine clearance and related work in Cambodia, which has been among the worst affected countries. By that exercise initially, Framework Agreements were signed in July 2010 between DFID, the Halo Trust (“Halo”), Mines Advisory Group (“MAG”) and G4S plc whereby these organisations could be invited to participate in “demining” work globally. Halo and MAG are well known international charities who over many years have done wonderful work in many of these mine affected countries not only to clear mines but also other ordinance.[2]This judgment is concerned with whether DFID should continue, at the suit of Halo, to be restrained by the operation of Regulation 47H of the Public Contracts Regulations 2006 (as amended by the Public Contracts (Amendment) Regulations 2009).from placing its contract with MAG for £3.5m’s worth of work in relation to demining work in Cambodia. This is urgent as the contract is supposed to be in place by 1 February 2011. Halo believes that it should have “won” the contract and that there are breaches of those regulations by DFID. It is perhaps unfortunate that a well-known charity such as Halo finds itself coming to court in effect to prevent another charity from proceeding with worthwhile work, albeit that part of its motivation is clearly to seek to preserve its mine clearance workforce. The History and Background[3]Since 1993, the UK Government has supported mine action and signed the Mine Ban Treaty of 1997, thus pledging itself to work towards securing a world free from the use and manufacture of and trade in land mines. DFID has a mandate also under the International Development Act 2002 to reduce poverty. Funds provided by DFID have gone towards demining activities in many countries throughout the world. In Cambodia, for some years and indeed currently, DFID has been and is funding mine clearance work by Halo and MAG through what is called an “Accountable Grant” mechanism.[4]There clearly has been a serious discussion within DFID as to what its strategy should be in connection with its work on mine action. One aspect of this discussion has revolved around the extent to which mine clearance should be linked with development. There is obviously a need to clear mines to avoid deaths and dismemberment but there is in many countries a perceived need to regenerate and develop areas in which there are mines which are to be cleared so that the land and areas affected can be used productively. DFID had discussions with other organisations, including Halo. Halo’s expressed view was and is that British Government funds should not be spent on any activity other than actual mine clearance and that funding for mine clearance should not be tied to the plans of development agencies, the view being that mine clearance should be done to avoid the killing and maiming of people and livestock by exploding mines.[5]There was a meeting on 21 October 2009 attended by representatives of DFID and Halo at which there was some discussion about a new draft strategy being promulgated by DFID which clearly introduced development outcomes as important in the funding strategy, There is an issue as to precisely what was said at this meeting, which I can not resolve. That issue revolves around what was said by the DFID representative, Mr Marker, in relation to whether or not funding for mine clearance could be diverted to development. This may well not matter for the purposes of this judgment.[6]In March 2010, DFID published its “Programme Strategy 2010-2013 Creating a Safer Environment clearing landmines and other explosive remnants of war”. This has not been challenged by way or judicial review or indeed as unlawful or Wednesbury unreasonable, by Halo or at all. Under the Definitions, it says this about "Mine Action":
“International Mine Action Standards (IMAS) defines ‘Mine Action’ as “activities which aim to reduce the social economic and environmental impacts of mines and ERW [Explosive Remnants of War]”
The definition goes on to say that mine action (referring also to footnote 1):
“…is not just about de-mining; it is also about people and societies, and how they are affected by landmine contamination. The objective of mine action is to reduce the risk from landmines to a level where people can live safely; in which social, economic and health development can occur free from the constraints imposed by landmine contamination…”
Footnote 1 states:
“The activities typically concerned with mine action are: mine risk education; humanitarian demining (mine and UXO [Unexploded Ordnance], mapping, marking, and-if necessary-clearance; victim assistance; stockpile destruction; advocacy against the use of anti-personnel landmines.”
Under the term “Demining” it is stated that: "Mine and ERW clearance is considered to be just one part of the de-mining process." “activities which aim to reduce the social economic and environmental impacts of mines and ERW [Explosive Remnants of War]”[7]The Executive Summary materially states as follows:
“This strategy covers the UK’s commitment to spend £30 million on mine action over the financial years 2010-2013 …Drawing upon lessons from the last fifteen years of support to mine action, it presents some changes to the way in which public funding for mine action is managed and delivered… The mine action community is re-appraising its strategies and adapting to the future. Mine action organisations have also evolved significantly since the early 1990s and most now recognise that the environment in which mine action takes place has changed. Mine action is no longer perceived as a pioneer and single-issue activity that occurs in the context of post-conflict or in emergency phases of development…Except in a few cases, the need to clear landmines just because they exist in the ground has now gone and the priority is to focus on removing those where there is a clear and measurable impact on development and human security. DFID’s mine action funding will be increasingly focussed on building countries’ own capacities to carry out demining, and maximising the impact of demining on the socio-economic development of targeted populations. To draw best value from the current and future context of mine action DFID’s new strategy is underpinned by these four core principles: • A focus on priority countries where mine action will complement the UK’s other development funding. • Ensuring a well coordinated global programme through competitive tendering for an experienced implementing partner or consortium. • Requiring implementing organisations to support DFID’s development goals and aid effectiveness principles, including closer integration of mine action in development programmes and progress towards nationally owned strategies and defined end states. • Monitoring the impact of mine action through ‘before and after’ evaluations of mine-affected communities.” • A focus on priority countries where mine action will complement the UK’s other development funding. • Ensuring a well coordinated global programme through competitive tendering for an experienced implementing partner or consortium. • Requiring implementing organisations to support DFID’s development goals and aid effectiveness principles, including closer integration of mine action in development programmes and progress towards nationally owned strategies and defined end states. • Monitoring the impact of mine action through ‘before and after’ evaluations of mine-affected communities.”
[8]In the chapter entitled "The Challenge" the following is stated:
“…The humanitarian impact of landmines and ERW is significant: they continue to kill and maim between 5,000 and 6,000 people a year. Those countries emerging from conflict faced huge challenges, both in terms of their capacity in financial and human terms to deal with landmines and ERW and their willingness to prioritise the problem in an environment where there can be any number of immediate post-conflict challenges. The clearance of mines must compete for its share of Government funds and international development aid alongside other urgently needed development projects. Landmines and ERW constrain development in the poorest countries in the world and can have devastating social and economic impacts. Importantly, the presence of landmines and ERW means that poverty stricken communities are barred from accessing or developing land resources which could be put into productive use to generate much-needed income for families and communities. In many countries mines and ERW must be cleared to allow safe access to water and sanitation. Mines and ERW also block roads and reduce access to markets and other critical infrastructure. Mines and ERW also contaminate agricultural land and renewable natural resources, all of which are fundamental to reducing poverty and hunger... agriculture and broader natural resources use are at the core of the economies of many developing countries…”
[9]Having quoted in Chapter 2 Article 6 of the Mine Ban Treaty (“Each State Party in a position to do so shall provide assistance for mine clearance and related activities”), the paper goes on in Chapter 3 to describe and clarify the "Aim and Objectives of this Strategy" of DFID’s mine action programme:
“The UK has pledged £30M over the financial years 2010-2013 to create a safer environment that reduces suffering and promotes development and poverty reduction. This programme aims to focus DFID resources on three key objectives: 1. To release mine affected land which will make a measurable contribution to the socio-economic development of mine affected communities. 2. To help governments take over the management of their national mine action programmes as soon as practicable. 3. To improve value for money in mine action. All implementing partner organisations will be expected to fulfil-or actively assist-all these key objectives to the extent possible in each country programme. Regular monitoring will confirm progress and identify areas. This will be undertaken through monitoring visits to country programmes to assess the demining and development outcomes actually achieved.”
[10]These three objectives were then examined individually. In relation to the first the following was stated:
“Mine action interventions can be effective in overcoming obstructions to social and economic development, particularly if interventions are closely linked with national and international development priorities. They have multiple positive spillover effects and can play an important role in movement toward the achievement of the MDGs [Millennium Development Goals]. The impact of mine action on development depends on how well mine action is coordinated with other development projects. The impact and effectiveness of clearance can be maximised through partnerships between clearance organisations, Governments and development NGOs to facilitate the delivery of clearly-defined development objectives. Therefore, because the best measure of success of mine action is based on the impact on the local population, mine action planners and managers must verify that what their projects are producing is reaching, and is useful to, intended beneficiaries. DFID will support partners or consortia who offer a broad range of inter-related development outcomes rather than a narrow focus. We will ensure that the tendering process permits multi-disciplinary partnerships or consortia. Priorities All implementing partners will be expected to target real need, as demonstrated by three kinds of impacts: • on land and assets-where clearance of contaminated land alleviates significant constraints to livelihoods and development, as indicated by the development of strategic resources and communal assets; and • on people-where release of contaminated land has the maximum direct humanitarian impact, as indicated by victim numbers and livelihoods; • on the economy-where clearance of specific sites will bring the greatest benefit to the local economy, as indicated by market development and investment in infrastructure. The indicators by which the results will be measured …Reduction in mine related casualties. It is recognised that there remain challenges with gaining and interpreting data on victim numbers. However this will be measured as an absolute number and will be judged on the reduction of casualties over time. Putting land back into productive use. This will be measured through a basket of indicators which may include a mix of: • Cleared land being used for habitation, agriculture or foraging for fuel supplies. • Provision of access to critical resources to satisfy basic needs such as water supplies. • Refugees and [Internally Displaced Persons] able to regain and secure access to their land. • Partnerships with providers of social/economic infrastructure, such as schools, medical centres, roads, areas of production, power supply and distribution systems etc. • Land cleared to facilitate the work of other humanitarian and development organisations. • Impact on human security, implying both freedom from fear of contaminated land and freedom from want of access to cleared land. Reduction of Poverty and Vulnerability… Promotion of confidence… Effectiveness This will be primarily measured by examining impacts and outcomes in mine affected communities and the wider economy. Consideration will be given to greater effectiveness through better donor coordination and joined up prioritisation…”
Priorities • on land and assets-where clearance of contaminated land alleviates significant constraints to livelihoods and development, as indicated by the development of strategic resources and communal assets; and • on people-where release of contaminated land has the maximum direct humanitarian impact, as indicated by victim numbers and livelihoods; • on the economy-where clearance of specific sites will bring the greatest benefit to the local economy, as indicated by market development and investment in infrastructure. • Cleared land being used for habitation, agriculture or foraging for fuel supplies. • Provision of access to critical resources to satisfy basic needs such as water supplies. • Refugees and [Internally Displaced Persons] able to regain and secure access to their land. • Partnerships with providers of social/economic infrastructure, such as schools, medical centres, roads, areas of production, power supply and distribution systems etc. • Land cleared to facilitate the work of other humanitarian and development organisations. • Impact on human security, implying both freedom from fear of contaminated land and freedom from want of access to cleared land. Promotion of confidence…

Effectiveness

[11]In relation to the third objective (improving “value for money”), the Priorities were described as follows:
“Value for money is best achieved through an optimum balance of input costs, productivity and the value of the outcome. Efficiency itself is important but of little value if it does not provide the outcome required. This will best be achieved through effective partnerships between the mine action provider and the development provider. DFID will take a multi layered approach to improving donor coordination…”
Under the heading "The indicators by which the results will be measured", the following appears:
“At the commencement of each country programme a baseline assessment will be made of the development situation. Subsequent progress will be measured against that baseline… The best indicator is continual improvement of the international response to mine action. Mine action is best supported in conjunction and coordination with other stakeholders and can be judged at a variety of levels. • Improving the efficiency of mine action to create better net present values. • Support for, and improvements in the performance of the UN in meeting its stated responsibilities towards mine action. • Engaging in and supporting co-ordination on the assessments of strategic issues, the needs of mine-affected countries and resource mobilisation. • Mine action implementers wishing to work with DFID funding will be expected to be fully transparent about all their funding sources and support donor coordination to the optimum host country interest…”
DFID will take a multi layered approach to improving donor coordination…” • Improving the efficiency of mine action to create better net present values. • Support for, and improvements in the performance of the UN in meeting its stated responsibilities towards mine action. • Engaging in and supporting co-ordination on the assessments of strategic issues, the needs of mine-affected countries and resource mobilisation. • Mine action implementers wishing to work with DFID funding will be expected to be fully transparent about all their funding sources and support donor coordination to the optimum host country interest…”[12]14 countries including Cambodia, Mozambique, Democratic Republic of Congo (“DRC”), Somaliland and Laos were identified as being on a short list of target countries.[13]It is almost beyond debate that this strategy at least highlighted the link between mine action and development and the fact that, for better or for worse, (at least) some priority was to be given to this facet. It is equally clear that Halo did not agree all aspects of this strategy, believing that mine clearance, simpliciter, should be the priority.[14]The strategy also encompassed procurement by competition. Thus it was that DFID published a notice in the Official Journal of the European Union (the “OJEU” Notice”) which sought to set up a Framework Agreement by way of an accelerated restricted procedure whereby three parties were sought to become operators under the Framework Agreement. The duration of this agreement was 30 months. Paragraph II.1.5 gave a short description of the agreement:
“[DFID] is seeking [Pre-Qualifications] from Service Providers to design and implement mine action projects in a minimum of 8 priority countries. It is anticipated that Framework Agreements arising from this advertisement will commence in October 2010. The projects will be focussed on realising the DFID objectives set out in its recently published Mine Action Strategy…The objectives are: To release of mine affected land to make a measurable contribution to the socio-economic development of mine-affected communities. To help governments take full responsibility for their National Mine Action Programmes. To improve value for money in mine action…”
[15]Halo together with a number of other parties pre-qualified to tender for the Framework Agreement and on 21 May 2010 Invitations to Tender were issued. On 27 May 2010, Halo wrote to the Secretary of State for International Development complaining that a number of countries had been excluded from the list of priority countries in which mine clearance was to be supported and querying why Vietnam, DRC, Ethiopia and Sudan had a higher priority. Mr Willoughby of Halo stated that "mainstream Development does not coincide with the most mine impacted communities-as Development agencies cannot access communities due to anti-tank mines on roads, and the presence of anti-personnel mines in and around the very health centres and schools that agencies want to rehabilitate…” He effectively reiterated the Halo view that it was wrong to base policy "centred around mainstream development" which, he argued would "consign most mine-impacted communities to many more generations of casualties, closed access to markets, health and education, and interrupted rural livelihoods."[16]The Award Criteria for the award of the Framework Agreements were specified to be:
“The most economically advantageous tender in terms of: B1) the criteria as stated below: 1) Quality of consortia/partner organisation. Weighting: 40 2) Methodology. Weighting: 30. 3) Commercial. Weighting: 20. 4) Quality of Personnel. Weighting: 10”

B1) the criteria as stated below:

[17]Tenders having been submitted, Framework Agreements were awarded to Halo, MAGS and G4S. The Framework Agreement dated 30 July 2010 (albeit signed on 20 August 2010) made between DFID and Halo identified that DFID "may require [Halo] to supply the services outlined in [the attached Terms of Reference]” by way of what were called "Calldown Contracts”, which would be set up for each separate procurement required. The Framework Agreement was to commence on 1 October 2010 to run the 30 months and by Article 4 time was to "be of the essence as regards performance by [Halo] of its obligations under this Agreement and each Calldown Contract in existence from time to time." The form of the Calldown Contract was to be substantially in the form annexed. General provisions relating amongst other things to procurement and equipment together with price and payment were set out in the Framework Agreement (Clauses 16 to 22). English law was to apply by Clause 30. The attached Terms of Reference contained material terms some of which were as follows: “1.1 Underlying principles 1.1.1 DFID’s new Mine Action Strategy 2010-2013…has four underlying principles:• a focus on priority countries where mine action will complement DFID’s other development funding;• competitive tendering for a minimum of three suppliers…• requiring Suppliers to support all DFID’s key objectives, especially closer integration of mine action into development programmes and progress towards nationally owned and defined end-states;• monitoring of the development effectiveness of mine action through ‘before and after’ evaluations of mine-affected communities. 1.2 Aim DFID expects the Suppliers to design and then implement projects in the countries listed which achieved the three objectives shown below (and in the Strategy), maximising the outcomes of each:• Objective 1-To release mine affected land to make a measurable contribution to the socio-economic development of mine affected communities;• Objective 2- To help governments take full responsibility for their National Mind Action Programmes;• Objective 3-To improve value for money in mine action… TENDER OVERVIEW3.1 Introduction 3.1.1 DFID will implement the major part of its new policy through a framework arrangement selecting Suppliers through international competitive tender for a 2.5 year period. DFID encourages the use of partnerships or consortia within which the broadest range of relevant skills is provided…3.2 Stages of the tender3.2.1 The tender in totality comprises three stages:3.2.2 Stage 1: following a PQQ (pre-qualification questionnaire). This part of the process is now complete.3.2.3 Stage 2: Award of framework agreements…3.2.4 Stage 3: Further competition. Framework suppliers (as per those awarded framework agreements in Stage 2) will be invited to bid for the country-specific contracts…”• a focus on priority countries where mine action will complement DFID’s other development funding;• competitive tendering for a minimum of three suppliers…• requiring Suppliers to support all DFID’s key objectives, especially closer integration of mine action into development programmes and progress towards nationally owned and defined end-states;• monitoring of the development effectiveness of mine action through ‘before and after’ evaluations of mine-affected communities.• Objective 1-To release mine affected land to make a measurable contribution to the socio-economic development of mine affected communities;• Objective 2- To help governments take full responsibility for their National Mind Action Programmes;• Objective 3-To improve value for money in mine action…[18]On 11 August 2010, DFID issued Terms of Reference for a tender competition, pursuant to the Framework Agreement, for Mozambique, Sudan and DRC. The Terms of Reference for Mozambique identified the "Underlying principles" and "Aim" and stated that the fixed-price contract over the 30 month period would be £2.5m. The Framework Suppliers were by Clause 3.3 to be "free to choose where they wish to work in order to deliver the best outcomes". It identified what the proposals should include, for instance as to how the funds were to be used and what the development outcomes were to be. Other things tenderers were asked to state was to why the work was required including a precise description of the specific impact on development with one of the "indicators" involving "putting land back into productive use". Criteria and sub-criteria were specified for the evaluation of tenders: "delivering the programme" (50 marks with five sub criteria and their respective weightings), "commercial proposal" (30) and Quality of Programme Team/Programme assurance (20) Tenders were returnable within two weeks. Halo submitted a tender for Mozambique on 26 August 2010 and, indeed, was the only Framework Supplier to do so. Perhaps unsurprisingly, DFID awarded the Mozambique contract to Halo.[19]On 22 September 2010, DFID invited Halo, MAGS and G4S to tender for work in Cambodia and Laos. All three tendered for Cambodia but Halo did not tender for Laos. The Terms of Reference for Cambodia were not dissimilar to those for Mozambique but there were some changes. The "Underlying Principles" and "Aim" were the same. The following were material parts: “1.3.3 The term ‘mine action’ refers to the removal of any explosive ordnance whose presence inhibits the delivery of development outcomes… 1.3.4 The term ‘Baseline Assessment’ is an analysis which, as a minimum, provides a quantitative and qualitative data that reflect the quality of life of the mine-affected communities as a consequence of the presence of mines and other explosive ordnance. In addition to standard qualitative Human Development Index indicators, key qualitative aspects such as sustainable livelihoods, development consequences and human security should be provided. 2.1 These ToR covers the contract period (1 October 2010-31 March 2013). 2.1 This is a fixed price contract for £2.5M for the full 30 month period. 3.2 Framework Contractors are invited to submit detailed proposals setting out what outcomes they will deliver in Cambodia within the time and funding limits set out above. 3.3 The Framework Suppliers are free to choose where they wish to work in order to deliver the best outcomes. Guidance can be sought from CMAA [Cambodia Mine Action Authority] … 4.1 Framework Contractors shall propose projects that best meet the requirements set out in this document and in the Strategy. It is not sufficient to state what areas will be cleared; there must be a clear and positive link to the delivery of specified and measurable development outcomes… 4.2.1 Proposals shall include:• A summary of no more than 500 words covering the use of funds, expected development outcomes and reference to linkages to any existing national mine action and development strategies where appropriate.• A project description…• A project appraisal, including in concise language: ◦ Background… ◦ Approach. Includes role/importance of any other key stakeholders. Must also explain how the initial Baseline Assessment of mine-affected communities will be undertaken and how soon it will be completed… ◦ Economic Appraisal. Describe why the approach being taken offers the best value in accordance with the anticipated development outcomes. ◦ Social Appraisal: Describe what the groups of people will benefit and how? ◦ Institutional Appraisal… ◦ Political Appraisal… ◦ Environmental Appraisal… ◦ Lessons and evaluation…. 5. This section informs how the objectives of DFID’s strategy should be incorporated into the bid. Points below are not discrete questions that must be addressed separately. They are provided for guidance but bids will be marked on how well Framework Suppliers address the issues set out here. 5.1 Objective 1 : Mine action to measurably improve development outcomes5.1.1 As set out above, the proposal shall state:• Whether the project has the support of CMAA.• Where the work will take place.• Why the work is required. This must include a precise description of the specific (i.e. not just a general statement) impact on development. The proposals should describe why the contamination is a constraint to both communities and, where appropriate, formal development actors. If possible, demonstrate the range of development initiatives that have occurred in similar areas subsequent to mine action and land release.• How the Baseline Assessment will be undertaken and what it will measure.• Existing development actors and initiatives, along with a summary of the known development plans for the community.• How the project will be implemented and managed to ensure the optimum level of added value to specified development outcomes.• Who are the partners who may undertake the development work, and how the value of the outcome will be measured.5.1.2 Using the Baseline Assessment as the start point, outcomes will be periodically measured against the following indicators. Framework Contractors are free to expand the list and DFID may make adjustments to it in the light of project experience.” [There are then are set out the “Indicators” which were "reduction in mine related casualties", "putting land back into productive use", "reduction of poverty and vulnerability" and "promotion of confidence". Against the second Indicator items to be measured included "provision of social infrastructure, such as schools and medical centres etc”, "provision of access to critical resources such as water points and fuel supplies", "provision of economic infrastructure, such as roads, areas of production, power supply and distribution systems etc” and "land cleared to facilitate the work of other humanitarian and development organisations”.]• A summary of no more than 500 words covering the use of funds, expected development outcomes and reference to linkages to any existing national mine action and development strategies where appropriate.• A project description…• A project appraisal, including in concise language: ◦ Background… ◦ Approach. Includes role/importance of any other key stakeholders. Must also explain how the initial Baseline Assessment of mine-affected communities will be undertaken and how soon it will be completed… ◦ Economic Appraisal. Describe why the approach being taken offers the best value in accordance with the anticipated development outcomes. ◦ Social Appraisal: Describe what the groups of people will benefit and how? ◦ Institutional Appraisal… ◦ Political Appraisal… ◦ Environmental Appraisal… ◦ Lessons and evaluation….• Whether the project has the support of CMAA.• Where the work will take place.• Why the work is required. This must include a precise description of the specific (i.e. not just a general statement) impact on development. The proposals should describe why the contamination is a constraint to both communities and, where appropriate, formal development actors. If possible, demonstrate the range of development initiatives that have occurred in similar areas subsequent to mine action and land release.• How the Baseline Assessment will be undertaken and what it will measure.• Existing development actors and initiatives, along with a summary of the known development plans for the community.• How the project will be implemented and managed to ensure the optimum level of added value to specified development outcomes.• Who are the partners who may undertake the development work, and how the value of the outcome will be measured.[20]With the Terms of Reference a 13 page document headed "Mini Competition Questionnaire Mine Action Programme in Cambodia" was issued. This set out further information relevant to the tendering for the Cambodian work. It purported expressly by Clause 1.2 to be a "competitive procurement conducted in accordance with the Restricted Procedure, under the UK Public Contracts Regulations 2006." Clause 5 provided that bids would be submitted by 13 October 2010 midday and that they would be evaluated by 22 October 2010 with an award by 1 November 2010. Clause 7 expressly acknowledged the possible use of sub-contracting. Clause 10 identified the "Evaluation Approach":
“The objective of the selection process is to assess the Responses to the Mini Competition and select the appropriate bidder to deliver the requirements of the mini competition. Selection criteria will be a combination of both financial and non-financial factors and will be carried out in a group evaluation, scoring will be as detailed below out of a maximum of 100. This will be qualitative for the technical sections and both quantitative and qualitative for the financial section. Only the responses to the evaluation criteria will be scored by the panel….”
This was continued in Clause 19 which indicated that the Evaluation Team would use scoring between 0 (“complete failure to address local requirements") and 6 (“Excellent-addresses all ITT issues and, where relevant, demonstrates fine tuning to match with the Authority’s expectations. Is of a quality and contains a level of detail/understanding that provides certainty of delivery, and permits full contractual reliance (where applicable)").[21]Evaluation Criteria were set out in a table: Criteria Sub Criteria Weighting Adherence to TOR (26) Section 4.2-Summary Section 4.2-Project Description Section 4.2-Project Appraisal Section 4.2-Method Statement Section 5.1-Objective 1 Section 5.2-Objective 2 Section 5.3-Objective 3 3 3 3 3 7 3 4 Delivering the programme (24) Details of the specific mine action outcomes that will be achieved and specify what, how and by whom the development potential of the cleared land will be realised. If providing details of beneficiaries, numbers should be realistic, meaningful, explained and context specific 10 A summary plan should be provided in Microsoft Project along with commentary which sets out the specific contractual outputs that the bidder is committing to deliver. This should include the mine clearance work and give an indication of the follow-on development work. 5 Bidders should also set out their understanding of the key challenges… 5 Bidders are asked as set out in detail their programme governance and performance management processes… 4 Commercial Proposal (30) Bidders must submit details of the elemental cost of delivering each output as set out in the attached templates… 25 Provide a proposed payment mechanism/schedule linked only to delivery of outputs 5 Quality of Programme Team/Programme assurance (20) Bidders must set out the process used to determine the required composition of their proposed programme team… 5 Bidders must set out an evidence-based summary of how the proposed team meet those requirements… 5 Bidders must set out how key team members will be recruited, performance management retains… 5 Bidders must explain their relationship with the organisation that will deliver the development outcomes and how that relationship will be managed 5 Bidders are asked to set out clearly any resource input required from DFID 0 Maximum score 100 These Evaluation Criteria were, obviously, different from those used for the Mozambique tender process, in relation to weightings and the overall criteria scores.[22]On 1 October 2010, DFID wrote to the three tenderers by e-mail: “A question has arisen about funding for development activities relating to mine action. As made clear in the strategy and other documentation, DFID’s primary purpose for the funding allocated through this tendering exercise is to support the achievement of development actions through mine action. Mine action funding should not be used to support development programmes which are unrelated to mine action, however may be used to fund activities supplemental and clearly linked to mine action which contribute to realising development benefits for mine affected communities. For example, this might include digging of a well on cleared land where this was necessary to allow meaningful use of and return to that land, or livelihoods workshops for beneficiaries that helped them to make most effective use of cleared land. DFID does not intend to provide any additional funding for development activities following on from my action. We have encouraged bidders to form partnerships to link to broader development for mine-affected communities. Where activities by other partners contribute to the development outcomes, proposals and reporting should make clear the extent to which would be/has been was supported [sic] through DFID Mine action funds and what was achieved through that funding. However, there should be no double counting and the reporting should make clear the extent to which benefits were achieved due to DFID mine action funding provided to the bidder and to what extent from other funding sources."[23]This prompted within an hour an e-mail response from Mr Willoughby:
“What you have written is a fundamental change midway through a tender process…For some Mine Action bidders it presents an entirely different set of partnership opportunities, where over many previous months potential development partners have stated to us that they cannot switch project locations unless new funding is made available. Within less than 10 working days of the Cambodia/Laos mini-tender to go, you are suddenly announcing the option of new funding opportunities and potential development partners…”
This was repeated in effect by another e-mail dated 4 October 2010 from Mr Zank of Halo to DFID in which it was asserted that, at the meeting almost a year before on 21 October 2009, DFID had said that funds for de-mining had to be spent simply and solely on de-mining. Mr Zank also asked how much of the £2.5m budget could be spent on "realising supplemental development aspects". DFID’s response on 5 October 2010 was to send its minutes of the meeting which presented a record which did not involve such an unequivocal assertion. This minute was challenged by Mr Willoughby in an e-mail back to DFID the following day.[24]On the same day Mr Willoughby sent an eight page letter to the Director General Country Programmes at DFID. He complained at some length of what he called a "Perfect Storm" involving contradictions and confusion. A major part of the complaint was the extent to which mine clearance was to be or should be linked to development. A flavour of what he said was this:
“Fundamentally, someone needs to decide in DFID whether the UK taxpayers’ £30,000,000 for the next three years is to be used to stop the most impoverished marginalised raw communities getting their legs blown off, and tractors and ox carts blown up, their livestock being killed, and used to clear their mined roads and footpath access to drinking water, markets, schools and health centres so that those communities can begin to climb out of poverty, or, are the funds to be diverted from these core aims are to be used in part by non-demining agencies in communities that are already less marginalised because they do have access to big "D" Development partners to follow on from the lesser quantities of mineclearance?”
He also raised what had been said at the October 2009 meeting and what he called a "reversal" of this policy to the effect that mine action budget funds could be used for development. He forcefully sought to argue that this was a fundamental change in policy and in the use of funds allocated for mine action and went on to address a number of other countries. He wanted the “more high fallutin’ big “D” [Development] aspects given less prominence”. It is said by DFID that Halo was also lobbying for an increase in the budget for funding for Cambodia.[25]The deadline for submitting tenders was extended to 19 October 2010 by which time bids from all three tenderers were received for Cambodia and one for Laos by MAG. At some stage, possibly in October 2010, the existing grant funding for Halo and MAGs for current work in Cambodia was extended to 31 January 2011.[26]On 28 October 2010 DFID wrote to all three tenderers as follows:
“Please note that we have received confirmation from the Programme Team that DFID will be increasing the funding to Cambodia for the Mine Action Programme by £1m therefore the total funding for Cambodia is now £3.5M. As a result can I ask that those Framework Partners who have already submitted a bid for Cambodia please review their bid and submit a revised commercial proposal based on the additional funding and if they feel they wish to add or change aspects of the technical proposal based on this then this can also be submitted. We are not at this stage expecting a fully revised proposal, but will be looking for a detailed addendum to the original submission particularly in the commercial aspect of your bid. Please submit a revised proposal by 12.00 noon on Friday 05th November 2010.”
Please submit a revised proposal by 12.00 noon on Friday 05th November 2010.”[27]There was no reaction, let alone complaint, from any of the three tenderers other than the submission by each of them on 5 November 2010 of revised proposals to take into account the increased funding available. The tenders were evaluated by DFID. In simple terms, the result of that evaluation was that MAG was the successful tenderer as judged by DFID. By letter dated 30 November 2010 but sent on 9 December 2010, DFID wrote to Halo explaining that with regard to Cambodia its tender had not been successful. It listed the scores against the award criteria compared with the winning tenderer’s score: AWARD CRITERIA YOUR SCORE WINNING TEN-DERER’s SCORE Adherence to TOR 108 113 Delivering the programme 85 112 Quality of Programme Team /Programme Insurance 75 95 Commercial 145 120 OVERALL SCORE 413 440 The letter sought, purportedly pursuant to Regulation 32 of the Public Contracts Regulations 2006 (as amended) to summarise why Halo had been unsuccessful and to explain the characteristics and relative advantages of the successful tender. The winning bid was said to provide a "generally very clear and beneficiary focussed" approach as well as a "clear commitment to prioritise work according to development need" as well as a "good list of activities within the specific mine action outcomes with attempt to tailor to development outcomes". Halo’s unsuccessful bid "did not deliver as high a level of confidence of ability to achieve measurable, development outcomes as the winning bid" had done. It was said that part "of the reason for this was the limited reference to specific activities to be undertaken by development partners, making benefits harder to quantify”. "Administration fees" were said to be "significantly higher than other bidders". There were complaints about the "summary plan providing a "very low level of detail"[28]Halo’s immediate response on 10 December 2010 by e-mail was that the information provided did not satisfy DFID’s obligations under the Regulations. It asked in effect for a copy of the assessment of the winning tender by reference to each of the criteria applied including the marks and weighting allocated to each bidder and asked DFID "to undertake not to enter into any contract with the successful bidder… until such time as HALO has been able to determine the grounds for legal challenge…” Halo also raised questions relating to the involvement of an organisation called the Geneva International Centre for Humanitarian Demining (“GICHD”) possibly as part of a consortium with MAG. DFID responded on 14 December 2010 to the effect that Halo’s tender “was assessed against the evaluation criteria as specified within the Invitation to Tender” and that "comprehensive feedback…was also provided", that full details of the scores had been given “against each evaluation criterion”, and that GICHD was a subcontractor proposed to be used by MAG for advisory services. DFID said that the "standstill period" under the Regulations was due to finish at midnight on 20 December 2010 and that it was DFID’s intention to award the contract after that time.[29]On 15 December 2010, Halo wrote back to DFID to the effect that the standstill period could not start until more information about scoring was provided. On 17 December 2010, DFID did provide a more detailed breakdown of the scoring by reference to the table in the Mini Questionnaire set out above, as against each of the criteria and sub-criteria. DFID went on to say that the quoted regulations did not apply, that DFID had simply volunteered a standstill period and that it remained its intention to execute the contract for Cambodia on 21 December 2010.[30]This clearly and finally prompted Halo to issue these proceedings. These Proceedings[31]Halo’s Claim, issued on 20 December 2010, initially in the Chancery Division, and sought a declaration that the award by DFID of the £3.5m contract for mine action services in Cambodia would infringe the Public Contracts Regulations 2006, or breach enforceable Community obligations or the terms of an implied tender contract. It also sought the setting aside of DFID’s decision to award the contract to MAG as well as an order restraining DFID from entering into the contract or otherwise and suspending the procedure for the award of the contract. Damages including "Exemplary Damages" were sought. DFID has in consequence of these proceedings not yet placed the contract with MAG. I will return to the specific allegations of breach later in this judgment.[32]DFID has issued its own application pursuant to Regulation 47 G (1) of the 2006 Regulations (as amended) in effect to lift the suspension on its ability to let the contract to MAG. The Claim and application were transferred to the TCC on 14 January 2011. The Law[33]There is a consensus that, in relation to the Court’s approach to applications under Regulation 47 G (1), the Court should apply the principles and practice of the House of Lords’ case, American Cyanamid Co v Ethicon [1975] AC 396. This was the approach adopted in the TCC in Exel Europe Ltd v University Hospitals Coventry and Warwickshire NHS Trust [2010] EWHC 3332 (TCC) and indeed in another case, Indigo Services (UK) Ltd v The Colchester Institute Corporation [2010] EWHC 3237 (QB). Thus, the Court has first to determine whether there is a serious question to be tried and secondly whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought. The "governing principle" in this latter exercise involves consideration of whether damages are an adequate remedy for the party in whose favour the interim injunction might be granted or continued.[34]So far as the Public Contract Regulations 2006 (as amended) are concerned, a contracting authority, such as DFID in this case is required by Regulation 4(3) to treat economic operators (such as Halo in this case) “equally and in a non-discriminatory way” and to “act in a transparent way". Regulation 19 deals with the framework agreements of the type with which this case is concerned; Sub-Regulation (12) states that the "contracting authority shall not use a framework agreement improperly or in such a way as to prevent, restrict or distort competition”. Regulation 30 sets out criteria for the award of a public contract, one of which is that contracts can be awarded on "the most economically advantageous" basis, which was applied here. Regulation 30 deals with such matters as the need for the tender documents to identify the weighting to be given to each of the relevant criteria.[35]Regulation 32 identifies the information which must be provided after the decision on any given tender is taken to the tenderers, but by Sub-Regulation (7) this does not apply to contracts awarded under a framework agreement. Similarly by operation of Regulation 32A the need for a standstill period between the decision being taken on the tenders and the award of any contract does not apply to such contracts.[36]As has been held in other cases (e.g. Alstom Transport v Eurostar International Ltd [2010] EWHC 2747 (Ch) at Paragraphs 125 and 138 and Indigo Services (see above) at Paragraph 5), it is legitimate for the Court to take into account on the balance of convenience exercise the public interest and the impact on others.[37]A point, which is a moot one in this case, has been raised as to what the Court should do in circumstances in which it finds that there is a serious issue to be tried but finds that the balance of convenience is exactly equal. The argument is made that the purpose of the Regulations and European law and practice being to support the process of fair, equal and transparent awarding of public contracts, there should be a "bias" or presumption in favour of granting or continuing the injunction to prevent the award of the public contract in question. David Donaldson QCs sitting as a Deputy High Court Judge in the Indigo Services said this at Paragraph 6: “It was suggested on behalf of Indigo that the Regulations provided a "steer"-said to be a bias not amounting to a presumption-in favour of an injunction. Whether or not that is the case as regards final orders at trial (which I doubt), I can detect nothing of the sort as regards the decision at the interim stage. In any event, the conclusion which I reach at the end of this judgement would be unaffected even if I factored in the suggested "steer"." The argument against there being a bias or indeed presumption is that, if Cyanamid applies, which it does in my view, and the balance of convenience is finally but equally balanced, the party seeking or wishing to continue the injunction has not made out its case for such an injunction. I decline to speculate obiter on this interesting but largely academic point on the basis that it will be a rare case where there is such a perfect balance.[38]In Lettings International Ltd v London Borough of Newham [2007] EWCA, 1522, Lord Justice Moore Bick with whom Lord Justice Ward agreed quoted at Paragraph 24 part of the European judgement in ATI EAC SRL and Viaggi Di Maio SNC v ACTV Venezia SPA [2005] ECR 1-10109:
"21 Next, it must be observed that the award criteria defined by a contracting authority must be linked to the subject-matter of the contract, may not confer an unrestricted freedom of choice on the authority, must be expressly mentioned in the contract documents or the tender notice, and must comply with the fundamental principles of equal treatment, non-discrimination and transparency (see Concordia Bus, cited above, paragraph 64). 22 In the present case, it must be observed, in particular, that the duty to observe the principle of equal treatment lies at the very heart of the public procurement directives (see Concordia Bus Finland, paragraph 81) and that tenderers must be in a position of equality both when they formulate their tenders and when those tenders are being assessed (see Case C-19/00 SIAC Construction [2001] ECR I-7725, paragraph 34). 23 It must also be observed that, in accordance with Article 36 of Directive 92/50 and Article 34 of Directive 93/38, all such criteria must be expressly mentioned in the contract documents or the tender notice, where possible in descending order of importance, so that operators are in a position to be aware of their existence and scope (see Concordia Bus Finland, paragraph 62). 24 Similarly, in order to ensure respect for the principles of equal treatment and transparency, it is important that potential tenderers are aware of all the features to be taken into account by the contracting authority in identifying the economically most advantageous offer, and, if possible, their relative importance, when they prepare their tenders (see, to that effect, Case C-87/94 Commission v Belgium[1996] ECR I-2043, paragraph 88, and Case C-470/99 Universale-Bau and Others[2002] ECR I-11617, paragraph 98). 25 Finally, it is for the national court to assess, in the light of these rules and principles, whether, in the case in the main proceedings, the jury infringed Community law by applying a weighting to the various subheadings of the third criterion for the award of the contract. 26 In that regard, it must be determined first whether, in the light of all the relevant facts of the case in the main proceedings, the decision applying such weighting altered the criteria for the award of the contract set out in the contract documents or the contract notice. 27 If it did the decision would be contrary to Community law. 28 Second, it must be determined whether the decision contains elements which, if they had been known at the time the tenders were prepared, could have affected that preparation. 29 If it did the decision would be contrary to Community law. 30 Third, it must be determined whether the jury adopted the decision to apply weighting on the basis of matters likely to give rise to discrimination against one of the tenderers. 31 If it did the decision would be contrary to Community law 32 Accordingly, the answer to the questions referred must be that Article 36 of Directive 92/50 and Article 34 of Directive 93/38 must be interpreted as meaning that Community law does not preclude a jury from attaching specific weight to the subheadings of an award criterion which are defined in advance, by dividing among those headings the points awarded for that criterion by the contracting authority when the contract documents or the contract notice were prepared, provided that that decision: – does not alter the criteria for the award of the contract set out in the contract documents or the contract notice; – does not contain elements which, if they had been known at the time the tenders were prepared, could have affected that preparation; – was not adopted on the basis of matters likely to give rise to discrimination against one of the tenderers."
This is unexceptionable. Discussion-Serious Issue to be Tried[39]Given the importance and urgency of this application, I hope that the parties will forgive me if I do not reiterate all the arguments, albeit that I will effectively deal with them in this part of the judgement.[40]It is accepted by DFID at least for the purposes of these proceedings that the Public Contracts Regulations should be considered as applicable. I will proceed on that basis.[41]A number of points have been taken in by Counsel for DFID that a number of complaints made against it by Halo are time-barred by operation of Regulation 47D of the Regulations (as amended) which provides, in the light of authority, for a time bar on proceedings starting in three months beginning with the date when grounds for starting the proceedings first arose or at the latest in three months from the time when the complainant knew or should have known of the matters giving rise to the complaint. It would follow generally therefore that any matters complained of which occurred before 20 September 2010 which were known about would be time-barred. There is, at least unexpressed as such, the complaint made by Halo that DFID’s strategy or policy (as published and set out in March 2010 and in the Framework Agreement documentation) was wrong, misguided and possibly unlawful in its concentration on the relationship between land mine removal and actual or potential developments in the relevant areas. In so far as any complaint in these proceedings is based on such a complaint, there is no serious issue to be tried. This is for two reasons, the first being that it is probably time-barred under the Regulations. The other reason is that this is not an Administrative Court-type Claim and it is not open to me, nor indeed have I been asked, to apply judicial review principles to that strategy or policy. Judicial review applications themselves have to be brought within a relatively short time scale and, I suspect, that timescale has elapsed some months ago. Therefore it is not open to this Court at this time to form, let alone express, any view on the justification or non-justification of that policy or strategy at. However, it is open to take into account the public interest in having the legally unchallenged policies of what are now successive governments followed and not interfered with.[42]Secondly, there is little, if anything, in my judgement to be served by attaching any or any additional weight to Halo’s claim based on an implied contract. This is because, assuming that the Public Contracts Regulations do apply in this case, there is no need to imply any contract because the Regulations create an adequate regime and framework. There is support for this view in J Varney and Sons Waste Management Ltd v Hertfordshire County Council [2010[ LGR 801- see Paragraphs 232-235).[43]In reviewing whether there is a serious issue to be tried, I will consider the separate paragraphs alleging breach of the Regulations in the Particulars of Claim. It must be borne in mind that the Court is not dealing with a summary judgement application and in reviewing whether or not there is a serious issue to be tried I am not giving judgement for or against Halo in respect of the individual breach.[44]I will first consider those allegations of breach which deal with matters which are extraneous to the procurement process. Paragraph 31 of the Particulars of Claim states:
"By reason of the matters set out in §s 4 to 8 and wrongfully and in breach of the obligations set out at §s 26 and 27 and each of them, there was a breach of regulation 30 (2) and the principles of transparency and equal treatment when DFID introduced the sub-criterion of development benefits under objective 1 and generally since that criterion was not linked to the subject matter of the contract because the subject matter of the contract is Mine Action (not other development activities). In particular, the emails of 1 Oct 2010 (and 5 Oct 2010) clarifying that DFID's funding of Mine Action could be used for development activities supplemental to Mine Action was contrary to Regulation 30(2). The subject matter of the contract is “the Mine Action programme”. Mine Action is defined by reference to IMAS’s definition in the strategy paper and that definition, therefore, applies throughout the procurement process. The definition of “Mine Action” is set out at page 3 of the Strategy paper including footnote 1 on page 3: “The activities typically contained within mine action are: mine risk education; humanitarian demining (mine and UXO survey, mapping, marking, and – if necessary clearance); victim assistance; stockpile destruction; advocacy against the use of anti-personnel landmines”. This definition cannot embrace within its meaning the benefits of development as well as demining."
This clearly involves at least in part a complaint that the strategy adumbrated in March 2010 as incorporated or arguably even modified or explained in the Framework Agreement documentation or indeed in the ToR for the Cambodian contract documentation is impeachable. In my view, there can not be a serious issue to be tried on this. The strategy is not impeachable as a matter of judicial review in these proceedings, if at all. The strategy says what it says and, for better or for worse, the linkage between demining as such, that is the location and removal of landmines, and development is spelt out in the wording of the strategy and that strategy is reflected in the agreement and contract documentation. It is simply not tenable to interpret “Mine Action” in the March 2010 Strategy document as limited to the activities set out in Footnote 1 to the Definitions (see Paragraph 6 above). Not only does the definition go on to say that mine action "is not just about demining”, the whole tenor of the strategy is the expressed need and desirability for linkage with development.[45]Paragraph 32 of the Particulars of Claim is in these terms:
"Wrongfully and in breach of the obligations set out at §s 26 and 27 and each of them, the UK government has publicly pledged £30 million for Mine Action for the financial years 2010 to 2013 and it is from this budget that the contract in question is to be funded. Use of the £30 million (£2.5 million or £3.5 million allocated to Cambodia) for purposes other than Mine Action (such as development activities) is outside the scope of the budget prescribed. The UK has pledged £30 million for Mine Action for the financial years 2010 to 2013 (para 2 “the requirement”, page 3 of the Cambodia mini competition questionnaire). This commitment was announced by the Secretary of State on the 25 November 2008 (see Press Release 25.11.2008 referred to in footnote 10, page 8, Strategy paper and at page 5 of Strategy paper). It follows that Use of the £30 million (£2.5 million or £3.5 million allocated to Cambodia) for purposes other than Mine Action is contrary to Regulation 30(2) which required the criteria to be linked to the subject matter of the contract."
Similar considerations apply here. The matters raised would sound more obviously in the Administrative Court and a complaint that part of the £30 million pledged to Mine Action is being improperly applied is essentially a matter of public law. The strategy is clear in its relationship between actual mine clearance and development and a challenge to the strategy would need to have been made many months ago in the Administrative Court by way of judicial review.[46]Paragraph 36 of the Particulars of Claim asserts: “Wrongfully and in breach of the obligations set out at §s 26 and 27 and each of them, failure to consult the Cambodian Government properly and to take into account their letter explaining their Mine Action plans constitutes a manifest error of assessment by DFIDs of Halo's bid which met the requirements of the mini-competition questionnaire in relation to the provision of information regarding the Cambodian Government’s demining policy." I find it difficult to see that consultation between DFID and the Cambodian Government, whilst arguably politically desirable, was a condition or even pre-condition to pursuing its strategy in relation to Mine Action and its publicised relationship to development. There is nothing in the Framework Agreement documentation or even the Cambodian tender documentation which suggests that the Cambodian Government would have had to be consulted about the strategy either as adumbrated or indeed as modified (if modified at all). I can not see that this raises a serious issue to be tried.[47]Paragraph 37 raises a complaint which is partly extraneous to the procurement for Cambodia:
"Wrongfully and in breach of the obligations set out at §s 26 and 27 and each of them, there has been a breach of Regulations 30 (2) and 30 (3) rules on weighting and/ or manifest error in so far as DFID allocated too high a weighting to criteria and sub-criteria relating to development activities which are not relevant to the contract award evaluation of the Mine Action programmes subject of the mini competitions"
. Regulation (2) gives a contracting authority like DFID a wide discretion in terms of selecting criteria "linked to the subject matter of the contract". The criteria listed are not exclusive or limited. DFID chose to adopt its published strategy in its procurement processes for Mine Action and chose to link the actual work of mine clearance to actual or potential development. If that is what a contracting authority wants to, there is not anything which is obviously or arguably wrong in it so doing. This is in reality another complaint, using different words, that the policy or strategy is wrong or misguided. It does not give rise to a serious issue to be tried. The weightings were what they were and reflected the relative importance attached to the different criteria, apparently properly selected by DFID.[48]Some miscellaneous complaints are raised. In Paragraph 33, Halo asserts:
"Wrongfully and in breach of the obligations set out at §s 26 and 27 and each of them, DFID has used selection criteria (PQQ criteria relating to tenderers), namely “experience” for the purposes of contract award evaluation where this is not a permitted criterion within the meaning of Regulation 30(2). Consequently, any reliance on a framework contractor’s experience such as MAG's in the context of development activities should not have been taken into account. Since Halo's (413) and MAG’s (440) scores are very close it is highly likely that Halo would have won the contract if not for the infringements of the regulations."
Regulation 30 (2) does not limit criteria as such, the wording being that “contracting authorities shall use criteria linked to the subject matter of the contract to determine that an offer is the most economically advantageous including" and there follows some 13 criteria which can be adopted. There would be nothing wrong in using "experience" in the particular country or area as a criterion that might well establish that an offer was the most economically advantageous. In any event, "experience" as such was not a specific criterion, although doubtless it will have featured at the Pre-Qualification stage. There is little reliable evidence that "experience" was in fact used as some sort of separable criterion for the purposes of the Cambodian procurement. There is some limited reference in the December 2010 feedback to experience but that was apparently in the context of tenderers being able to demonstrate confidence in delivery, which is a material criterion. This does not obviously give rise to a serious issue to be tried and, indeed was not seriously emphasised by Halo in its arguments.[49]Criticism of the marking and weighting is made in Paragraph 34:
"Wrongfully and in breach of the obligations set out at §s 26 and 27 and each of them, DFID has made a manifest error in its assessment of the development benefits sub-criteria under Objective 1 and generally since it has not taken into account the fact that DFID awarded Halo top marks on the same criteria and sub-criteria in its assessment of the Framework Agreement ITT submission which even included Cambodia as an example of its approach to development outcomes. Halo's evaluation scores under the criterion “ability to analyse development impact, deliver outcomes and work with national authorities” totalled 156 out of a possible 180. On 5 of the 6 sub-criteria Halo scored 5 (high degree of confidence that bidder can meet programme needs and do what they say via a thorough understanding of what is being asked for) out of 6 marks and 6 out of 6 (excellent – addresses all ITT issues and where relevant demonstrates fine tuning to match with the Authority’s expectations) on integrating Mine Action with development outcomes. Again, the scores attributed to Halo in respect of the same criteria for Mozambique were much higher than those awarded by DFID for Cambodia (for example, 1 mark in one case where 5 had been granted before). As Halo's Cambodia bid took advantage of the feedback on Mozambique from DFID in this context, the expectation should have been higher marks for Cambodia than for the Mozambique bid. It suggests that DFID may have taken into account a new and undisclosed criterion in the evaluation of the Cambodia bids such as unlawfully carrying out a comparison of the tenders."
It is not obviously a helpful exercise to compare the marking on the Framework Agreement with the marking on the Cambodian procurement because the Framework Agreement was looking at matters on a much broader basis than in relation to a single country. Thus, for instance, a tenderer for the Framework Agreement could have scored extremely well overall in relation to a basket of countries on a given criterion but not done so well on an individual country. Similarly a comparison between Halo’s bids on Mozambique and Cambodia is not necessarily or obviously an exact or legitimate one. There may be different reasons for that. The countries may give rise to different problems, logistic and otherwise. It is also not particularly helpful to compare the Mozambique and Cambodia procurements because the marking and weightings were different. In my judgement, this is a light weight complaint.[50]Paragraph 35 of the Particulars of Claim states:
"Wrongfully and in breach of the obligations set out at §s 26 and 27 and each of them, there has been a serious breach by DFID of the transparency andequal treatment principles as well as manifest error in the use of beneficiary measurement as a sub-criterion without a definition of beneficiary and requesting information relating to the number of beneficiaries in identified villages. Further, the Cambodian government’s own system, which any potential operator is obliged to comply with for the identification and approval of villages where mine clearance will take place, works on an annual cycle and thus it is not possible for operators to identify potential beneficiaries of their work, beyond the first year of the funding agreement, let alone disaggregate them by gender. Yet within the “debrief”, Halo has been criticized for failing to identify the project beneficiaries for Years Two and Three of the project. Thus any consideration by DFID of beneficiary numbers that have been forecast for Years Two and Three of the project are based on unreliable evidence which cannot comply with the regulations that govern Mine Action in Cambodia"
. In essence, this is a complaint that the term "beneficiaries", particularly in the sub-criteria for "Delivering the Programme" is not defined. This is hardly surprising because it is a general word which has its own dictionary definition and would broadly mean persons or organisations who will benefit from what the tenderer is proposing. It is also hardly surprising because tenderers were invited to submit a "project appraisal" which included a "social appraisal" which asked individual tenderers to describe the groups of people who would benefit and how they would benefit. It was left up to the tenderers to identify the beneficiaries relating to their proposals. There was no lack of transparency or equal treatment that I can discern let alone any manifest error. I do not see this as raising a serious issue.[51]In Paragraph 38, Halo raise a complaint about the proposed use by MAG of a sub-contractor:
“Wrongfully and in breach of the obligations set out at §s 26 and 27 and each of them, there has been a breach of the principle of impartiality and distortion of competition contrary to Regulation 19(12) by Geneva International Centre for Humanitarian Demining (GICHD) being permitted by DFID to participate in a Framework Agreement as a subcontractor and to be awarded the contract as part of a consortium without any assessment of the unique advantages that they enjoy as a State aided intergovernmental body with responsibilities and powers within global mine action conferred on them by international treaty." There is nothing in the Framework Agreement let alone the Cambodian procurement documentation which bars the use of subcontractors. Indeed, Clause 7 of the Mini-Questionnaire expressly envisaged the possibility of subcontracting it being prefaced with the word "where a consortium or subcontracting approach is proposed…”
There is nothing intrinsically offensive about the use of subcontractors and indeed for many procurements it is common. It appears that GICHD is only to be engaged for advisory work. There is no serious issue.[52]Paragraph 39 contains the last miscellaneous complaint:
“By reason of the matters set out in §s 19 to 25 and wrongfully and in breach of the obligations set out at §s 26 and 27 and each of them, DFID's conduct of the award decision notice procedure has infringed Regulations 32 (1) to 32A, the General Principles of transparency, equal treatment, good administration and proportionality as well as Halo'srights to a fair hearing under Article 6 of the European Convention of Human Rights as applied by the Human Rights Act 1998 entitling Halos to exemplary damages for the major infringements of their fundamental rights and of the principle of effective remedies in EU law.”
Paragraphs 19 to 25 of the Particulars of Claim effectively complain of how the Claimant was treated after the decision to appoint MAG was communicated to them. I do not see how this is particularly material if there is no other serious issue to be tried about the earlier parts of the procurement process. If one assumes that, apart from this complaint, everything else was done in accordance with the regulations and any other legal requirements, it is difficult to see how matters of complaint relating to the amount of information provided to them after the decision to award the contract elsewhere could sensibly give rise to any complaint which should prevent the award of the contract. That said, DFID’s argument that Regulations 32(1) to 32A do not apply as such to contracts awarded pursuant to an existing Framework agreement appears on the words used in the Regulations themselves a strong one. Thus even if DFID did provide limited or, in the eyes of Halo too little, information by way of feedback that would not give rise obviously to legal complaint because DFID would not be obliged to provide any information. Again, I do not consider that this gives rise to a serious issue to be tried.[53]The two most weighty complaints are those set out in Paragraphs 29 and 30 which can be taken together:
"29. By reason of the matters set out in §s 15 to 16 above and wrongfully and in breach of the obligations set out at §s 26 and 27 and each of them, there has been a breach of thetransparency principle, equal treatment and regulation 30(2) insofar as the criteria and sub criteria relating to objective 1 (6 of them), namely DFID funded clearance–related development activities required to be addressed in the Cambodia bid, were unclear as to whether it was to be funded at all and in particular, if it was to be funded out of the original £ 2.5 million or increased £3.5 million, to what extent bidders could allocate those funds to objective 1 and development activities generally. DFID has failed adequately to explain the Mini-Competition Questionnaire including, for example, failing to clarify how much of the budget provided could be allocated for the development outcomes requested (despite repeated requests for clarification)." 30. By reason of the matters set out in §s 17 to 18 above and wrongfully and in breach of the obligations set out at §s 26 and 27 and each of them, there has been a breach of thetransparency principle. Major change to terms of the mini competition by increasing budget from £2.5 million to £3.5 million constitutes a substantial change requiring the reopening in full and notice to the framework contractors of the mini competition. In particular, Halo could have made a fuller tender submission and included more detailed plans for innovative development activities in currently unassisted communities by its proposed development partners, which it could not do in the 5 working days permitted from 28 October to 5 November 2010. It follows that DFID has made substantial changes to the terms of the mini-competition which ought to have required the reopening in full and notice to the contractors rather than merely notifying the actual bidders and allowing them only 5 working days to revise their bids which was bound to infringe the Equal Treatment Principle as well since they were not likely to be starting from the same position."
These complaints relate to things which were done or said after the invitation to tender for Cambodia went out to the tenderers.[54]The first issue really relates to the contents of the e-mail dated 1 October 2010 from DFID to the tenderers to the effect that mine action funding could “be used to fund activities supplemental and clearly linked to mine action which contribute to realising development benefits for mine affected communities”. One example given was of digging a well on land cleared of mines where it is necessary to allow meaningful use of the land. It is fair to say that the strategy, the Framework Agreement documentation and the Cambodia Terms of Reference did not as such expressly spell that out but it is also fair to say that those documents did not specifically exclude it. It is certainly strongly arguable that, with the emphasis on releasing "mine affected land to make a measurable contribution to the socio-economic development of mine affected communities", "putting land back into productive use" and improving or providing "value for money", it was implicit that some elements of the funding might be used for such directly related activities. Reference to or reliance by Halo upon what was or was not said at the meeting in October 2009 before the strategy and the various contract documents were published seems to be misplaced. The strategy said what it did and it is not as such a contractual document or a document which has to be construed as if it was.[55]It is difficult to say the tenderers were not treated equally or in a transparent way. The e-mail of 1 October 2010 went to all tenderers and the wording in the letter is, however palatable its contents, clear in what it says. It is not obviously a fundamental departure from the earlier documentation. Although there was no explanation as to how much of the budget could be spent on this related development work, that was the same for all tenderers and there was no specific limit. That does not seem to involve an obvious breach of the Regulations.[56]The second issue relates to the increase in budget from £2.5 million to £3.5 million. All tenderers were treated the same in the sense that each was told about the increase and what in terms of tendering to do about it. It is not obvious how it can be said that there was a breach of the "transparency principle", in that the increase was there for all tenderers to see and to apply their minds as to how to spend it. It should be borne in mind that the strategy had been in place since March 2010 and the Framework Agreement tendering and contract placement had been in mid-summer 2010. It was known that Cambodia was one of the countries where mine action would be required, that the current funding was due to expire in October 2010 and that there was to be a much greater concentration on linking actual mine clearance to development. Halo had been in Cambodia for many years and indeed was employing about 1000 people on mine clearance or related work. One probably needs therefore to review what happened in relation to the increase in budget in that context.[57]What is very surprising, in the light of the current complaint, is that Halo, which had never been slow to register concerns and complaints before, said absolutely nothing about any concerns in relation to timing or otherwise when it, together with the other tenderers, was told of the increase and the need to submit a tender addendum within about a week. Indeed, the complaint seems only to have been formulated in the Particulars of Claim for the first time. An immediate thought for most charities such as Halo with particular experience in a particular country like Cambodia would presumably have been to welcome an increase in the available funds of 40%. Halo's argument is partly based on assertions that, because it operated to a large extent in areas of Cambodia where there was less development potential and interest, it was particularly prejudiced, compared with MAG, in being able to relate the extra £1 million funding to development. However, it is still surprising that if that was the case it did not ask DFID for some extra time; there is no particular reason to think DFID would not have granted some more time, as it had already granted some extra time and it would presumably have been in its interest to allow, say, another week or so for the tenderers' further considered positions.[58]I have formed the view that these two further complaints are also at the weak end of the spectrum and do not present serious issues to be tried.[59]Mr Clough QC put the substance of Halo’s case in a rather different way than that which has been pleaded by Halo. He said that the main issue in the case is the failure of the Defendant “to identify the criteria (or sub-criteria…) that it wished to take into account in evaluating the bids received in the mini tender competition for Cambodia” (Paragraph 8 of his Skeleton Argument). Although part of this argument was related to the individual complaints pleaded, the argument represents a somewhat strained interpretation of what apparently happened. The reality is that the criteria and sub-criteria were spelt out and, indeed, I have set them out above. The weightings and marks to be given were spelt out also. Whilst one might seek to complain that some of these criteria should not have been used by DFID, they were used and they are not obviously criteria which breach the Regulations or any other aspect of European jurisprudence.[60]In conclusion, I am satisfied that the first threshold has not been passed. Although it is not necessary to do so, but out of deference to the arguments put forward, I move on and briefly deal with the balance of convenience. Discussion-Balance of Convenience[61]Even if I had concluded that there was a serious issue to be tried, I would have found that the balance of convenience was such that DFID should no longer be restrained from entering into its proposed contract with MAG. My reasons, not in any order of importance, are as follows:(a) There is a public interest in DFID being permitted to pursue its policy, which is a lawful one and not one which is in practice capable of judicial review. The policy, judged objectively, is a worthy one, even if there are alternative views as to that policy or to the priorities to be applied. The policy involves providing funds which not only go to clearing mines and other ordnance (and thus saving lives) but also to assist and encourage development of the areas affected by landmines which before clearance can not safely be used,(b) Whilst there will always be a judgement to be made in any given case, formal and recognised procurement procedures which are designed to achieve value for money can be considered preferable to handing, albeit with strings attached, grants to institutions. It is a paradox that Halo in essence would prefer non-competitively tendered grant funding to be continued at least in the short term.(c) It is almost inevitable that, if the suspension is continued until trial of the substantive matters in this case, there will be a minimum delay of 5 to 7 months before trial and judgement. There will therefore be continuing uncertainty not only for Halo and DFID but also for MAG as to what is going to happen. There is no certainty and, on the evidence, no probability that grant funding will be extended beyond 31 January 2011 to enable Halo and MAG to continue their current operations, either at all or at the same level as currently or necessarily to both of them. Such a period of uncertainty can only be bad for the people of Cambodia as well as the two charities. It is accepted on all sides that at the very least mine clearance is vitally important and it is undoubtedly also important that cleared areas are capable of being put to good use. Halo and MAG would, so far as their undertaking in Cambodia is concerned, both face real problems the longer this uncertainty continues. What will or may well be created by continuing uncertainty is that mine and land clearance may well be delayed or disrupted and people who might not have been injured and killed will be. In this context, the certainty created by the lifting of the statutory suspension significantly outweighs the uncertainty involved in continuing it. It needs to be borne in mind that all parties agreed in the Framework Agreement that time should be of the essence in relation to the Calldown Contracts.(d) Whichever of MAG or Halo had "won" the Cambodian project, the other would have faced some real problems such as redundancies and the like. Both are currently operating there with funds from a number of sources but with key grant funding from DFID. What one would hope and indeed anticipate is that staff from the "losing" organisation would at least in part be able to transfer to the "winning" organisation.(e) There is evidence from both sides in this case that there will be substantial redundancies faced by the losing tenderer. Unfortunately the evidence is not directly comparable. Halo produce evidence to show redundancies which they face if they failed to secure the Cambodia contract (over 440 staff) whilst there is evidence from MAG of the more limited effect of a continuing suspension for five months (over 70 staff). I assume that MAG’s losses would be greater if it ultimately lost or had lost the contract.(f) Halo has, it says, some $55 million of funds annually with funds coming from some 13 countries, three institutional donors, some 13 private foundations as well as donations from members of the public. There is little if any reliable evidence from Halo that at least some further replacement funding from other sources could not be made available to enable it to continue its good work in Cambodia.(g) Given the views which I have expressed as to the relative weakness of Halo’s case on liability, it would be disproportionate to delay a decision on this for 5 to 7 months.(h) I am wholly satisfied that damages would be an adequate remedy even if ultimately Halo succeeded in these proceedings. Halo has pointed to redundancies and redundancy costs. Those are eminently quantifiable and provable together with other management and overhead losses. As Halo is a charity and non-profit-making institution, there would in any event not to be a loss of profits claim. There is no suggestion that Halo’s reputation, which appears to be good, would suffer or that charitable donations would go down from other sources as a result. Decision[62]It follows from the above that this is a case in which the restraint on DFID’s ability to place the Cambodian contract with MAG should be brought to an end. Appropriate orders and directions to that effect shall be given.[63]I would end this judgement only by saying this. There can be no doubt on the evidence before this Court that both Halo and MAG have been doing extremely worthwhile work in Cambodia in connection with the clearance of landmines and other ordnance. Nothing which I have said in this judgement should in any way be taken as meaning or implying any criticism of either organisation for the work which they have done in that regard and will continue to do.

Cited in 1 later judgment