“a. whether the fact that the Claimant did not issue a claim form and notify the Defendant that it had done so before the Defendant’s entry into the Contract means that, given regulation 47G of thePublic Contracts Regulations 2006 , any loss that the Claimant has suffered in consequence of any breach of its obligations by the Defendant is not attributable to any such breach [Answer: the issue is not appropriate to be determined as a preliminary issue]. b. if the Claimant has suffered any loss in consequence of any breach by the Defendant of its obligations: i. whether the Court has any discretion not to make any award of damages in respect of that loss or a discretion to make only a partial award of damages in respect of any such loss [Answer: No]; and ii. if so: (1) on what basis any such discretion is to be exercised; and (2) whether the fact that the Claimant did not issue a claim form before the Defendant's entry into the Contract and notify the Defendant that it had done so means that, given regulation 47G of thePublic Contracts Regulations 2006 , it would be inappropriate for the court to make any award of damages or one in relation to the full loss suffered by the Claimant [Answer: Does not arise].” i. whether the Court has any discretion not to make any award of damages in respect of that loss or a discretion to make only a partial award of damages in respect of any such loss [Answer: No]; and ii. if so: (1) on what basis any such discretion is to be exercised; and (2) whether the fact that the Claimant did not issue a claim form before the Defendant's entry into the Contract and notify the Defendant that it had done so means that, given regulation 47G of thePublic Contracts Regulations 2006 , it would be inappropriate for the court to make any award of damages or one in relation to the full loss suffered by the Claimant [Answer: Does not arise].”
“i) Energy Solutions’ failure to issue and alert the NDA to a claim form before it entered into the Contract does not break the chain of causation between any breaches of the NDA’s obligations that may be established and any loss caused to Energy Solutions in consequence of them. ii) The English court has no discretion as to making an award of damages to Energy Solutions if it is shown to have suffered loss as a consequence of breaches of duty established against the NDA under the Regulations.”
“An evaluative judgment of this sort is not capable of constituting a manifest error”
“Confidential Information means the tender response of Cavendish Fluor Partnership (“CFP”) and any extracts from it or any other document or identified parts of a document agreed between CFP and the Claimant to be Confidential Information as set out from time to time in Part A of Schedule 3 to this Order. The meaning of Confidential Information, or the contents of Schedule 3 to this Order, may be amended by agreement between CFP and the Claimant or by Order of the Court”
“* Identifies the key critical assets necessary to deliver the Bidder's strategy and provides the rationale as to why they are critical; * Demonstrates ownership and monitoring of critical assets such that they are managed throughout the duration of the strategy / approach to ensure delivery of the approach to implementation the required level of performance is achieved.”
“* Identifies the key critical assets necessary to deliver the Bidder's strategy and provides the rationale as to why they are critical; * Demonstrates ownership and monitoring of critical assets such that they are managed throughout the duration of the strategy / approach but may not explain how this will ensure delivery of the approach to implementation or how the critical assets that the required level of performance will be monitored.”
“Q.…Now, I must put it to you that that is completely unrealistic. If you are giving evidence and you stand the chance to gain a bonus of£100,000 if the evidence is accepted, it must influence your evidence, and I put it to you that it did? A. I would – I would say no to that, and I think you just have to look at what was presented to the court. A large amount of my evidence related to what was in the CFP proposal, what was in the NDA's -- in the SORR, how the NDA evaluated it, and I fundamentally had – I presented that in all factually based documents. So I have no evidence of anything else, bar the documents that were put in front of me. So I stand by what I say there. It's that I purely put in what was truthful in relation to reading what was in the CFP proposal, reading what was in the NDA's evaluation, again it's the SORR, and those facts are clearly laid out, and that is what I did.”
“A. Well, the point of the – I think one of the points of the payment was to actually ensure that I remained – I was retained to continue working on the actual proposal, you know, the actual litigation. And so if I was required, I would still be there. I clearly believed, and actually, I think, although not subject to this, I have had to turn down jobs that I would have been able to do, and so therefore it was part of an overall arrangement to ensure that I actually continued supporting the actual, you know, this litigation if so required, and that was something that the company agreed to do.”
“As a commercial and technical specialist working in the nuclear decommissioning sector the Restriction severely curtails my potential employment options until it expires. At the time I was concerned (and continue to be concerned) that this undertaking limits my job opportunities for a potentially significant period of time.”
“….there was nothing untoward about changing scores or consensus comments after an Evaluation Node had been closed down. Indeed, as far as I was concerned, it was further evidence that the SMEs were carrying out a prudent, diligent and consistent evaluation of the bids. In my view, it would have been inappropriate if we had not let SMEs reflect on points, respond to challenges, and reconsider scores and comments, throughout the process.”
“We feel that the above observations are material omissions and undermine the Authority's confidence in the Bidder's approach to deliver the requirement”
“The NDA’s disclosure does not include any such records, nor any written communications between SMEs. Accordingly, it would appear that the SME evaluators did not communicate with each other at any point during the evaluation process save in physical meetings or by telephone. That includes during the whole process of revisiting consensus scores and rationales following the Burges Salmon Review, a time at which the AWARD database was supposed to have been closed, and so even that limited vehicle for recording individual views ceased to be available. This suggests that these late revisions were discussed and agreed orally without any record being made of such discussion. The effect of the NDA’s approach was to limit the permanent record of what occurred to the absolute minimum of information.”
“if you are at all unsure, you must score up”; and “are there any points where you would like to check consistency with other nodes?”
“Clarification questions must not be used to solicit additional tender information from Bidders – this would be contrary to procurement regulations. For example: A perfectly legitimate request for clarification may read “On page XX of your bid submission you refer to a project worth£50M whereas on page W of your bid submission you refer to the same project with a value of£60M . Please could you clarify which figure is correct”
“On page XX of your bid submission you refer to a project worth£50M . Please could you provide the following additional information about this project: Scope summary, Schedule Information and a breakdown of the costs.”
“As part of the Burges Salmon audit of evaluation, they have discovered a discrepancy whereby a Bidders score and comments for 1 requirement seem erroneous. The requirement in question is Technical Underpinning, Sample Project 5, requirement 414.5.1 (a) for Bidder 5. Upon investigation with AWARD it seems that the score and comments were correct until the 25th February. It seems that on this date an accidental error occurred and the score and comments were attributed erroneously. I would like permission for the lead SME to open up this nodes answer book and change the score and comments back to its original score and comments that were agreed during the consensus meeting. Kind Regards Steve Dixon”
“…the NDA may require Bidders to submit interim submissions during the course of Dialogue to provide feedback to Bidders on their solutions and to ensure that only credible Solutions are progressed to final tender.”
“Q. Do you accept that you personally had to be consistent, Mr Grey? A. I don’t. That wasn’t in the scoring criteria.”
“Q. Another purpose [of dialogue], particularly in the later stages, during the interim drops, was that bidders could discuss their draft proposals to obtain feedback from the NDA as to whether those proposals were acceptable or needed to be improved, or whatever? A. That is also correct, yes. Q. You agree that where SMEs gave feedback to bidders the evaluation of the bidders' final tenders had to be consistent with that feedback? A. I think broadly, yes. The only qualification I would put in that is – as you noted earlier on – our thinking was evolving all the way through dialogue. So what may have been a position say, for example, at interim drop 1 may not have necessarily been a position at interim drop 2 and at final tender stage. But with that qualification, yes, broadly I would agree with that. Q. In fact, that was something you made clear to all the evaluators before they started their evaluations, wasn't it? A. It was.”
"The NDA consistently and transparently declares its evaluation approach and methodology to bidders and ensure [sic] it is understood via the dialogue process. The NDA also has procedures in place to ensure that the evaluation is in accordance with the declared approach."
“Evaluators carry a heavy responsibility: – appointing the right contractor – high profile and expensive procurement process – susceptible to legal challenge – heightened risk in this competition – Rigorous governance review of outcome – Confidentiality and discretion absolutely paramount – people will want and may seek information. They mustn’t get it”
“Commission investigation Ineffectiveness Fines Cost Damages Delay Contract shortening Automatic injunctions Set aside decisions Adverse PR”
“Biggest risk……not doing what we have said we would do!”
“The Lead Reviewer to produce a single consolidated list of questions using this proforma All clarification Notes Sheets to be returned at the end of evaluation for shredding. Revision 1 – October 2013.”
“Handwritten notes: there was some discussion on whether the hard copies of the tender could be written on and shredded at the end of evaluation. We have sought legal advice and anything that is written on must be kept for audit purposes in the event of a legal challenge. We therefore insist that you do not write on the hard copy tender documents and to ONLY USE the award software to record any notes that you wish to make whether this be initial thoughts during the initial review phase, including navigational notes and questions, which can then be deleted from the system if no longer required/answered during final review stage.”
“The records provided go far beyond recording the conclusions of the evaluators. Any suggestion that the process was not appropriately or sufficiently recorded and documented cannot be entertained.”
“Q. Are you able to cast any light on that? A. I can't I'm afraid.”
“4. Accountability Holders of public office are accountable to the public for their decisions and actions and must submit themselves to the scrutiny necessary to ensure this. 5. Openness Holders of public office should act and take decisions in an open and transparent manner. Information should not be withheld from the public unless there are clear and lawful reasons for so doing.”
“…it is not my task merely to embark upon a remarking exercise and to substitute my own view but to ascertain if there is a manifest error, which is not established merely because on mature reflection a different mark might have been awarded…..”
“However, this procedure must not be used in such a way as to restrict or distort competition...”
“A contracting authority shall (in accordance with Article 2 of the Public Sector Directive)— treat economic operators equally and in a non- discriminatory way; and act in a transparent way.” treat economic operators equally and in a non- discriminatory way; and act in a transparent way.”
“(1)....a contracting authority shall award a public contract on the basis of the offer which— (a) is the most economically advantageous from the point of view of the contracting authority;... (2) A contracting authority shall use criteria linked to the subject matter of the contract to determine that an offer is the most economically advantageous including quality, price, technical merit, aesthetic and functional characteristics, environmental characteristics, running costs, cost effectiveness, after sales service, technical assistance, delivery date and delivery period and period of completion. (3) Where a contracting authority intends to award a public contract on the basis of the offer which is the most economically advantageous it shall state the weighting which it gives to each of the criteria chosen in the contract notice or in the contract documents or, in the case of a competitive dialogue procedure, in the descriptive document. (4) When stating the weightings referred to in paragraph (3), a contracting authority may give the weightings a range and specify a minimum and maximum weighting where it considers it appropriate in view of the subject matter of the contract. (5) Where, in the opinion of the contracting authority, it is not possible to provide weightings for the criteria referred to in paragraph (3) on objective grounds, the contracting authority shall indicate the criteria in descending order of importance in the contract notice or contract documents or, in the case of a competitive dialogue procedure, in the descriptive document.”
“The threshold/ranking Evaluation Nodes have been selected due to their importance to the Authority, based on experience across the Authority estate. These Nodes are:”
“(1) Subject to paragraph (13), a contracting authority shall, as soon as possible after the decision has been made, inform the tenderers and candidates of its decision to— (a) award the contract; and shall do so by notice in writing by the most rapid means of communication practicable. (2) Where it is to be sent to a tenderer, the notice referred to in paragraph (1) shall include— (a) the criteria for the award of the contract; (b) the reasons for the decision, including the characteristics and relative advantages of the successful tender, the score (if any) obtained by— (i) the economic operator which is to receive the notice; and (ii) the economic operator— (aa) to be awarded the contract; or (ab) to become a party to the framework agreement, and anything required by paragraph (10); (c) the name of the economic operator— (i) to be awarded the contract;.... (9) Except to the extent that the contracting authority has already informed the economic operator (whether by notice under paragraph (1) or otherwise), and subject to paragraph (13), a contracting authority shall within 15 days of the date on which it receives a request in writing from any economic operator which was unsuccessful (whether in accordance with regulation...18(10), 18(11), 18(22), [or] 18(23)...) — (a) inform that economic operator of the reasons why it was unsuccessful; and (b) if the economic operator submitted an admissible tender, the contracting authority shall inform that economic operator of the characteristics and relative advantages of the successful tender and— (i) the name of the economic operator to be awarded the contract... (13) A contracting authority may withhold any information to be provided in accordance with paragraph (1), [...] 12 (9) or (11) where the disclosure of such information— (a) would impede law enforcement; (b) would otherwise be contrary to the public interest; (c) would prejudice the legitimate commercial interests of any economic operator; or (d) might prejudice fair competition between economic operators.” (a) award the contract; and shall do so by notice in writing by the most rapid means of communication practicable. (a) the criteria for the award of the contract; (b) the reasons for the decision, including the characteristics and relative advantages of the successful tender, the score (if any) obtained by— (i) the economic operator which is to receive the notice; and (ii) the economic operator— (aa) to be awarded the contract; or (ab) to become a party to the framework agreement, and anything required by paragraph (10); (c) the name of the economic operator— (i) to be awarded the contract;.... (a) inform that economic operator of the reasons why it was unsuccessful; and (b) if the economic operator submitted an admissible tender, the contracting authority shall inform that economic operator of the characteristics and relative advantages of the successful tender and— (i) the name of the economic operator to be awarded the contract... (a) would impede law enforcement; (b) would otherwise be contrary to the public interest; (c) would prejudice the legitimate commercial interests of any economic operator; or (d) might prejudice fair competition between economic operators.”
“(1) A breach of the duty owed in accordance with regulation 47A...is actionable by any economic operator which, in consequence, suffers, or risks suffering, loss or damage. (2) Proceedings for that purpose must be started in the High Court, and regulations 47D to 47P apply to such proceedings.”
“(1) Paragraph (2) applies if— (a) the Court is satisfied that a decision or action taken by a contracting authority was in breach of the duty owed in accordance with regulation 47A..; and (b) the contract has already been entered into. (2) In those circumstances, the Court— ... (c) may award damages to an economic operator which has suffered loss or damage as a consequence of the breach...; (d) must not order any other remedies.” (a) the Court is satisfied that a decision or action taken by a contracting authority was in breach of the duty owed in accordance with regulation 47A..; and (b) the contract has already been entered into. (2) In those circumstances, the Court— (c) may award damages to an economic operator which has suffered loss or damage as a consequence of the breach...; (d) must not order any other remedies.”
“Once the obligation of the member state to provide that remedy in damages has been discharged by the United Kingdom by the terms of regulation 32(5)(b)(ii) those damages provided by domestic law remain damages on the basis envisaged by Directive (89/665/E.E.C.); but regulation 32(5)(b)(ii) none the less thereby creates a private law, nondiscretionary, remedy, because within the national legal order any remedy in damages necessarily has those qualities.”
“Conversely, however, part at least of Buxton LJ’s dictum as to the status of the claim under the Regulations does seem to me to form part of the essential reasoning leading to the decision. The Regulations provide for a cause of action for breaches of the provisions of parts 1-8 of the Regulations, which must be regarded in these courts as an action for breach of statutory duty. It was because the claim was an action for breach of statutory duty that it had to be compared, in order to give effect to the EU law principle of equivalence, to other such duties. In any event, I have no doubt that Buxton LJ was right to hold that the claim under the Regulations was indeed a private law claim for breach of statutory duty.”
“…carried a heavy burden here, and some may have found this sort of role a challenging one. That is a good reason to take a realistic view of what standards of, for example, expression of reasons are to be looked for.”
“…level best, and it is also apparent that [the] NDA did seek to give them as much support as it could”
“An evaluative judgment of this sort is not capable of constituting a manifest error.”
“27. The principally relevant enforceable Community obligations are obligations on the part of the Authority to treat bidders equally and in a non-discriminatory way and to act in a transparent way. 28. The purpose of the Directive and the Regulations is to ensure that the Authority is guided only by economic considerations. 29. The criteria used by the Authority must be transparent, objective and related to the proposed contract. 30. When the Authority publishes its criteria, which conform to the above requirements, it must then apply those criteria. The published criteria may contain express provision for their amendment. If those provisions are complied with, then the criteria may be amended and the Authority may, and must, then comply with the amended criteria. 31. In relation to equality of treatment, speaking generally, this involves treating equal cases equally and different cases differently….. …. 34. When the court is asked to review a decision taken, or a step taken, in a procurement process, it will apply the above principles. 35. The court must carry out its review with the appropriate degree of scrutiny to ensure that the above principles for public procurement have been complied with, that the facts relied upon by the Authority are correct and that there is no manifest error of assessment or misuse of power. 36. If the Authority has not complied with its obligations as to equality, transparency or objectivity, then there is no scope for the Authority to have a “margin of appreciation” as to the extent to which it will, or will not, comply with its obligations. 37. In relation to matters of judgment, or assessment, the Authority does have a margin of appreciation so that the court should only disturb the Authority’s decision where it has committed a “manifest error”.”
“Under the 2006 Regulations as amended, the principal way in which an unsuccessful bidder, such as the Claimants, can challenge the proposed award of a contract to another bidder is to show that the public body's evaluation of the rival bids either involved a manifest error or was in some way unfair or arose out of unequal treatment. Accordingly, in deciding such claims, the court's function is a limited one. It is reviewing the decision solely to see whether or not there was a manifest error and/or whether the process was in some way unfair. The court is not undertaking a comprehensive review of the tender evaluation process; neither is it substituting its own view as to the merits or otherwise of the rival bids for that already reached by the public body.”
“…who expressly request it with the characteristics and relative advantages of the successful tender and the name of the tenderer to which the contract was awarded within fifteen calendar days of receipt of a written request” (Paragraph [59] {AB/17/11}). The purpose of this duty was: “…to make the persons concerned aware of the reasons for the measure and thereby enable them to defend their rights and, on the other, to enable the Court to exercise its supervisory jurisdiction”
“In any event, according to settled case-law, the statement of the reasons on which a decision adversely affecting a person is based must allow the Court to exercise its power of review as to its legality and must provide the person concerned with the information necessary to enable him to decide whether or not the decision is well founded. Accordingly, the fact that a statement of reasons is lacking or inadequate, hindering that review of legality, constitutes a matter of public interest which may, and even must, be raised by the Community judicature of its own motion.”
“…the obligation to state reasons is an essential procedural requirement, as distinct from the question whether the reasons given are correct, which goes to the substantive legality of the contested measure.” (Paragraph [63]) Similar or identical statements are made in T-667/11 Veloss International SA v European Parliament [2015] EUECJ T-667/11 14 January at [41], [56]-[66], {AB/28/1} a case concerning the supply of Greek translation services for the Parliament. Although in that case the application was for annulment of the decision to select the successful tenderer, it also contained an express application for damages for the loss suffered. This can be seen from the second bullet point in paragraph [21], reciting that the applicant asked the Court to: “…order the Parliament to pay compensation in the amount of EUR 10000 for damages suffered on account of the loss of opportunity and damage to their reputation.”
“…the obligation to state reasons is an essential procedural requirement, as distinct from the question whether the reasons given are correct, the latter going to the substantive legality of the contested measure.”
“…in the context of the claim for annulment of the contested decision, that decision is flawed by inadequate reasoning and must therefore be annulled.”
“49 It is clear, however, that, even if the Council did not give adequate reasons for the contested decision, that does not mean that the award of the contract to the successful tenderer constitutes wrongful conduct or that there is a causal link between that fact and the loss alleged by the applicant (see, to that effect,Case T-4/01 Renco v Council[2003] ECR II-171 , paragraph 89). Indeed, there is no ground for concluding that the Council would have awarded the contract in question to the applicant if that decision had been adequately reasoned. 50 It follows that the claim for damages in respect of the alleged damage suffered as a result of the contested decision must, in so far as it is based on the inadequate reasoning of that decision, be rejected as unfounded.”
“On the basis of the consideration that compliance with the procurement rules must be ensured in particular at a stage at which infringements can still be corrected, it must be concluded that an expression of the will of the contracting authority in connection with a contract, which comes in any way whatever to the knowledge of the persons interested, is amenable to review, provided that that expression has passed the stage of acts which constitute a mere preliminary study of the market or are purely preparatory and form part of the internal reflections of the contracting authority with a view to a public award procedure and is capable of producing legal effects.”
“….it was a highly charged period of time, the standstill period. We had got, I think, something in the region of a 70-page letter from RSS on a Sunday morning, Sunday, 6th April, if I recollect rightly. They demanded a response I think within a couple of days, or something like that, and we were trying to respond to it as quickly as we could.”
“45. It is also very important to note that it is the score ultimately awarded which must be manifestly erroneous before intervention is justified. Even if some manifest error is found in the reasoning which led to the score awarded, it will not follow that the score itself is manifestly erroneous; see J Varney & Sons Waste Management Ltd v Hertfordshire CC[2010] LGR 801 at [193] {AB/46/1}, where Flaux J adopted the approach to manifest error of Silber J in Letting International, and continued: ‘I also agree with Mr Howell [counsel for the Defendant] that what Varney [the Claimant] has to demonstrate to satisfy the test is that the mark given was manifestly wrong. Much of the case advanced on behalf of Varney was on the basis that there were inconsistencies or unfairness in elements of Mr Shaw’s [ie the evaluator’s] reasoning in his notes. However, that in itself is beside the point: what has to be demonstrated is that the mark given was in manifest error.’ 46. This need for manifest error in the score itself, not just in the reasoning behind it, was also recognised in Willmott Dixon at [179] and [214].”
“…even if the criticisms were well-founded, it would have made no difference in practice to the outcome so far as Varney is concerned.”
"In neither EU nor domestic law is there an articulation of what is understood by "manifest"
“…more ready to find that a manifest error has been committed if the evaluation exercise as a whole has been casual and illorganised.” {AA/2/19} The reason for this submission may be because the NDA effectively seek to rely upon the converse, to the effect that the court should be less ready to find a manifest error if the exercise has been well-organised. There is no doubt that in some cases, some of the evaluation exercises have left something, if not a great deal, to be desired. A good example is the exercise in Woods Building Services v Milton Keynes Council[2015] EWHC 2011 {AB/65/1} when the Judge described, with commendable understatement, certain factors as “unsatisfactory”
“The only real issue of principle was the extent to which 'manifest error' broadly equated with the concept in UK law of Wednesbury unreasonableness. Ms Osepciu said that it did; Mr Barrett submitted that the bar for 'manifest error' was not as high as that. In my view there is a broad equivalence between the two concepts. I set out my reasons for that conclusion, together with the relevant authorities, in BY Development Ltd and Others v Covent Garden Market Authority[2012] EWHC 2546 (TCC) . I note that subsequently, in the Court of Appeal decision in Smyth v Secretary of State for Communities and Local Gvernement and Others[2015] EWCA (Civ) 174 , Sales LJ said, when dealing with the review of a planning dispute on environmental grounds, that "the relevant standard of review is the Wednesbury standard which is substantially the same as the relevant standard of review of 'manifest error of assessment' applied by the CJEU in equivalent contexts…". By contrast, no authority was cited to me which suggests that this broad equivalence is incorrect. I note that my judgment in BY Developments was cited and followed in Wilmott Dixon Partnership Ltd v London Borough of Hammersmith and Fulham[2014] EWHC 3191 (TCC) . Moreover, in my view there is nothing in the SIAC or the Easycoach cases to suggest any different approach, despite Mr Barrett's submissions to that effect. The highest he could put it was by reference to paragraph 53 of the opinion of Advocate General Jacobs in SIAC, but it is clear to me that this was simply a comment on the possibly exaggerated way in which the Wednesbury test had been expressed at first instance in that case, rather than an exposition of a point of principle, let alone one of such importance. Had it been otherwise, some citation by the Advocate General of at least some authority for this approach might be thought to have been the minimum required. There is none. Finally I should mention the recent case of Gibraltar Gaming and Betting Association Ltd v The Secretary of State for Culture, Media and Sport & Others[2014] EWHC 3236 (Admin) . In that case Green J was dealing with a challenge to the legality of an Act of Parliament. The relevant test was whether or not it was 'manifestly inappropriate'. He dealt with that issue at paragraph 100 of his Judgment in these terms: "In neither EU nor domestic law is there an articulation of what is understood by "manifest". The phrase is defined in dictionaries as something which is: readily perceived, clear, evident, clearly apparent, obvious or plain. The etymology is from the Latin "manifestus" - palpable or manifest. These definitions are helpful only to a degree. What has to be "manifest" is the inappropriateness of a measure. There are two broad types of case where inappropriateness is put in issue. First, where it is said that a measure is vitiated by a clearly identifiable and material error. These are the relatively easy cases because the error can be identified and determined and its materiality assessed. The error may be a legal one, e.g. the measure is on its face discriminatory on grounds of nationality (as in R v Secretary of State for Transport ex Parte Factortame[1991] ECR I-3905 ). It may be a glaring error in logic or reasoning or in process. But even here there are complications since whilst it is true that an error which is plain or palpable or obvious on the face of the record may easily be termed "manifest" that cannot be the end of the story. An error which is clear and obvious may nonetheless not go to the root of the measure; it might be peripheral or ancillary and as such would not make the disputed measure manifestly inappropriate. Equally an error which is far from being obvious or palpable may nonetheless prove to be fundamental. For instance a decision or measure based upon a conclusion expressed mathematically might have been arrived at through a serious error of calculation. The fact that the calculation is complex and that only an accountant, econometrician or actuary might have exclaimed that it was an "obvious" error or a "howler", and even then only once they had performed complex calculations, does not mean that the error is not manifest. An error in the placing of a decimal point may exert profound consequences upon the logic of a measure. This suggests that manifest in/appropriateness is essentially about the nature, and, or centrality/materiality of an error. An error will be manifest when (assuming it is proven) it goes to the heart of the impugned measure and would make a real difference to the outcome." Mr Barrett suggested that this analysis was inconsistent with the test of Wednesbury unreasonableness. Again I disagree. Green J was simply making plain that manifest inappropriateness, or in this case manifest error, is essentially about the nature and centrality (or materiality) of the error in question. In particular he was making the point that the mere fact that the error might not be immediately apparent to the layman is not necessarily a reason to conclude that it is not manifest. The observations of Green J seem to me perfectly consistent with the approach taken to the test of 'manifest error' in the cases to which I have already referred.”
“The dispute is irrelevant, however, for what it ultimately seeks to do is to substitute for the relevant test, namely whether there is a manifest error of assessment, a different test, namely whether the assessment is Wednesbury unreasonable.”
“From this line of authority I derive the following principles in the context of the present case: (1) In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in the action. (2) If a court is willing to draw such inferences, they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably be expected to call the witness. (3) There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue. (4) If the reason for the witness's absence or silence satisfies the court, then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified.”
“…..meetings of contract procurement evaluation panels are something considerably greater than merely formal events. They are solemn exercises of critical importance to economic operators and the public and must be designed, constructed and transacted in such a manner to ensure that full effect is given to the overarching procurement rules and principles.” {AB/75/25} That statement was endorsed by Coulson J in Bristol Missing Link Ltd v Bristol City Council[2015] EWHC 876 (TCC) {AB/76/1} at paragraph [42] {AB/76/11}. In that case a provider of domestic violence and abuse support services in Bristol challenged the award of a contract for those services going forward to another provider. In giving his detailed reasons for continuing the imposition of the automatic stay upon the award of the new contract, and in the context of a “serious issue to be tried”, Coulson J addressed the issue of a moderation exercise, which had produced apparent anomalies for which there was no explanation. As a result of a particular moderation meeting, the higher scores that Bristol Missing Link Ltd had been initially awarded were reduced, with no explanation in the proceedings other than: “…an admission by the Council that the original evaluators may have failed to apply the correct criteria first time round.”
“[19] … a Defendant who has, in breach of duty, made it difficult or impossible for a Claimant to adduce relevant evidence [as to the consequences of a breach of duty] must run the risk of adverse factual findings”
“…unless the Defendant did produce the jewel, and shew it not to be of the finest water, they should presume the strongest case against him, and make the value of the best jewels the measure of their damages”
“(b) For the purposes of evaluation, a response will be deemed to contain a "material omission" or a "material inconsistency", if the Bidder's response contains an omission or inconsistency which, in the opinion of the evaluators, is likely to result in any of the following effects: (i) In relation to the Key Enabler and Technical Scope and Methodology Underpinning Evaluation Nodes: (A) A significant impact on the programme or a high risk of a delay or failure to complete an Authority Milestone; (B) The Bidder's rationale for adopting the proposed strategy or approach being fundamentally undermined; (C) A failure of safety critical aspects of work or an increase in safety related incidents; (D) Regulatory enforcement action; (E) Creation of a conflict between the Bidder's proposed strategies or approaches which undermines confidence in delivery of the Requirements as set out in the SORR or the required outcomes in the Client Specification or the terms of the SLCA or PBA; or (F) The Authority's confidence being otherwise fundamentally undermined in relation to the Bidder's strategy or approach or its ability to deliver the Requirements as set out in the SORR or the required outcomes in the Client Specification or the terms of the SLCA or PBA”
“Accordingly, in deciding such claims, the court's function is a limited one. It is reviewing the decision solely to see whether or not there was a manifest error and/or whether the process was in some way unfair.”
“(1) To warrant a score of 1, any failure to identify a critical asset must relate to a failure to identify a “key” critical asset. Any other construction would make the scoring criteria inconsistent. That is because a response warranted a score 5 or 3 if such “key” critical assets were identified, even if other critical assets (that were not “key”) were not so identified. It follows that it was insufficient to justify a score of 1 for the SMEs merely to conclude (justifiably) that an asset which a bidder had not identified was “critical”
“Critical assets identified complete with rationale and ownership. Information on how they intend to manage the critical assets is provided as well as maintenance and monitoring. The bidder has not recognised the AETP and the saline ground water pumping system (these are examples of omissions) as critical assets despite descriptions of their role and risks in the project elsewhere in the submission that would suggest otherwise which is considered to be a material omission. Whilst the proposal states that critical assets will be managed taking account of past performance, future demand and capability and therefore responds to the requirement, the quality could have been improved by providing more details on specifically how this will be done. The absence of this detail is considered to be an omission but not material. Otherwise the submission has addressed the remaining scoring criteria.”
“An evaluative judgment of this sort is not capable of constituting a manifest error”
“Contractual Obligation: To support the Authority's Strategy in relation to the requirement to adopt a recognised Good Industry Practice asset management standard such as the Publicly Available Specification PAS-55, the Contractor shall: 6.4(a) implement asset management consistent with Good Industry Practice. When judging whether Good Industry Practice is being achieved the Authority will use: [i] Publicly Available Specification PAS-55 (or equivalent) with the expectation that the Contractor demonstrates a maturity level of 3 (or equivalent) as measured by the standard; and [ii] any relevant and recognised guidance (e.g. HSE, IAEA, professional bodies, etc.) associated with the management of assets….”
“critical assets/asset systems assets and/or asset systems that are identified as having the greatest potential to impact on the achievement of the organisational strategic plan. NOTE The assets can be safety-critical, environment-critical and/or performancecritical, and can relate to legal, regulatory and/or statutory requirements”
“4.4.7.6 Asset criticality The concept of asset criticality is a particular manifestation of risk management - this is the recognition that assets and asset systems have differing importance (value), or represent different vulnerabilities, to the organization. Criticality will usually include, but is not limited to, the risks of asset failure or non-performance. Criticality may also consider asset capital value, performance or efficiency, flexibility and other characteristics that reflect organizational goals and values. The corresponding asset characteristics should be assessed and weighted or scaled in a consistent manner to determine asset criticality for the purposes of prioritized asset management attention. Some assets of low material value, or indirect business contribution, may still have the potential to cause high impact in the event of failure (for example, safety relief valves). Care should be taken in the definition and determination of asset criticality that includes risk elements. Some organizations refer to criticality only in terms of the potential failure consequences of the assets or asset systems; this may be suitable for prioritizing repairs or corrective actions for failures that have already occurred, but the true risks (probabilities multiplied by consequences) should normally be used within asset criticalities for the purposes of planning asset management (and risk management) actions. In some cases, where risks represent very low probability, very high consequence events (such as major safety risks), a degree of "disproportionality" should be considered to artificially increase the criticality, in recognition of the greater uncertainties associated with such risk estimations.”
“The strategy selected for NDA asset management improvement is to utilise the internationally recognised asset management standard, Publically Available Specification – 55 (PAS-55)”
“…the SLCs were incentivised to secure asset performance through benchmarking their asset management arrangements and to identify critical assets using a risk based approach.”
“… comprehensive and easy to read, including … the approach to optimising asset programmes/performance … and ownership and monitoring proposals.”
“….I don't know – no one has highlighted this before. Many people have read it [the Gate C document] and not highlighted the error and questioned it. I have read it many times and missed it myself. I can't account for that.”
“…a description of how those assets will be managed to ensure delivery of the [Sample Project] work scope”
“• Demonstrates ownership and monitoring of critical assets such that they are managed throughout the duration of the strategy to ensure the required level of performance is achieved; • Explains how it will manage the critical assets to deliver the Bidder’s strategy in the context of past performance, future demand and capability”
“…irrelevant. The assets are critical to the project and it doesn't matter who manages them.”
“…should show a couple of good examples from the list [of critical assets] to demonstrate out (sic) thinking”
“…an outline description of how those key critical assets would be managed”
“The following scopes are excluded from Preparing Dungeness Reactor Complex for IS: ■ The Ponds are attached to the reactor complex but the scope is in the Ponds programme ■ The Miscellaneous Reactor Area Clearance scope is in the contaminated D&D works ■ Storage of ILW in the reactor complex voids ■ The site enabling activities and C&M periods are in the facilities scope ■ The onsite and offsite transport of wastes and the disposal/storage of wastes is in the Technical and Waste Function scope ■ Land Quality Management personnel will address remaining soil and groundwater scope” ■ The Miscellaneous Reactor Area Clearance scope is in the contaminated D&D works ■ Storage of ILW in the reactor complex voids ■ The site enabling activities and C&M periods are in the facilities scope ■ Land Quality Management personnel will address remaining soil and groundwater scope”
“Critical assets identified complete with rationale and ownership...The bidder has not recognised the AETP and the saline ground water pumping system (these are examples of omissions) as critical assets despite descriptions of their role and risks in the project elsewhere in the submission which is considered to be a material omission. Whilst the proposal states that critical assets will be managed taking account of past performance, future demand and capability and therefore responds to the requirement, the quality could have been improved by providing more details on specifically how this will be done. The absence of this detail is considered to be an omission but not material. Otherwise the submission has addressed the remaining scoring criteria.”
“…no foundation to suggest that [CFP] had either understood or identified groundwater as being an issue.” {Day13Z-CON/53} Even though, according to him, it was: “…one of the two things that everyone at Dungeness talked about a lot.” {Day13Z-CON/53} This is somewhat circular. Either groundwater was an issue at Dungeness, or it was not. A failure to identify that it was an issue could not, logically, excuse a bidder from identifying the measures necessary to deal with it as key critical assets. CFP used a slightly different title to the Node, namely: “Preparing the reactor building complex for both reactors at Dungeness Site for the Interim State”
“The scope of this Sample Project (Project) is to prepare the reactor building complex for both reactors at the Dungeness Site for Interim State (IS), by reducing radiological risks and industrial hazards, and constructing a weather envelope for the reactor buildings.”
“The object was to see whether bidders had properly considered the implications of their own strategies.” considered the implications of their own strategies.”
“The criteria and concepts in play here are not hard-edged ones admitting of a single objectively right or wrong answer. Rather they were matters of degree calling for judgment on the part of the evaluators, challengeable only on the basis of manifest error.”
“Whilst the proposal states that critical assets will be managed taking account of past performance, future demand and capability and therefore responds to the requirement, the quality could have been improved by providing more details on specifically how this will be done. The absence of this detail is considered to be an omission but not material.”
“…no explanation or justification [was] offered for that sort of relatively expensive inspection regime where, as recorded in the same Figure 411-21, the cladding had been warranted with a 25 year design life. Thus no attempt had been made to explain the proposed management of this asset…..”
“For example, for the weather envelope cladding in Figure 41121 on page 17, what is the logic behind ‘Annual inspections … with refurbishment of cladding as necessary’ given the observation under the heading ‘Future Demand & Capability’ that the cladding had been warranted with a 25 year design life? It might be that the cladding does require inspection annually with refurbishment as necessary, but there is no link between this and the other observations. We were left to join the dots.”
"Annual inspections (100% at fixing points) with refurbishment of cladding as necessary"
“Following our process we are, however, content that the past performance of the crane and the downtime of any maintenance can be sufficiently mitigated and downgraded to an essential asset. UHP jetting equipment was determined to be essential but not critical because of the availability for maintenance and replacement.”
“…was in error when it stated that the skip crane was used to move the fuel inventory in and out of the storage pond.”
“…the skip crane is the only viable means of moving pond furniture and containers for sludge around the pond, including use in conjunction with a conveyor used to move items in and out of the pond. If the skip crane failed the project time line will be delayed.”
“The items and equipment to be removed include bolted or concreted furniture such as sorting tables and underwater handling equipment, and loose items such as skips, IONSIV cartridges, Submersible Caesium Removal Unit filters, and section gates.”
“Enabling Activities: Purchase of Main Equipment, Install and Function test of deplanting, decontamination and sludge retrieval equipment, ongoing maintenance, set up furniture/skip decontamination, size reduction, survey and packaging facility including provision of equipment, tools and ventilation.”
“The scope of this Sample Project (Project) is to manage liquid active effluent at the Sizewell A site. This includes operations, maintenance and replacement of water treatment systems, and the compliant discharge of treated effluents to the North Sea. The decommissioning of active effluent treatment facilities is not within the scope of this Project.”
“RSS failed to understand what was expected from them in this response. The bidders were asked to identify what the critical assets were and how they would manage the risks associated with them. Failure to identify a critical asset is deemed to be a material omission for the purposes of scoring a 1 (Appendix 2 Table K). As they did not identify a critical asset necessary to deliver their strategy, RSS was automatically scored a 1. RSS appears to have taken the approach that an asset is not critical if it is low risk i.e. they only categorised assets as “critical” if they were high risk. Question 1 The identification of critical assets is linked to the bidder’s strategy. PWTP is in the opinion of the expert evaluators, critical to the management of active effluent, based on RSS strategy. RSS appears to have misunderstood what PWTP does. RSS has adopted a different categorisation to critical assets depending upon their risk profile and has dismissed PWTP as a critical asset on the basis that it is considered to be low risk. This is not what the NDA required them to do. If RSS had responded that they were going to change the strategy from the status quo and justified why they do not need the PWTP any more, the evaluators would not have scored the RSS response 1 based upon the failure to identify a critical asset.”
“…includes operations, maintenance and replacement of water treatment systems.”
“However, when we came to scrutinise the response again in late February, and with the benefit of having observed these same issues when evaluating RSS’s other Technical Scope and Methodology Underpinning Evaluation Nodes, we felt that RSS could and should have done more to explain how observations and analysis of past performance and future demand were influencing the asset management going forward. For example, for the sand pressure filters, what exactly had been learnt from experiences at Bradwell and Hinkley Point? RSS identifies uncertainties but does not explain what happened at Bradwell and Hinkley Point and what that might mean for Sizewell. Overall, it lacks a level of detail to give us confidence that RSS’s proposed management has incorporated these lessons. We determined that the absence of detail was an omission, but not a material one.”
“At Winfrith there are no operations longer than two years, or assets with a life longer than seven years, except possibly the surface water drainage. We will focus on removing assets as facilities are shut down and minimising maintenance compatible with these limited lives. We have not covered component level assets within facilities such as ALES or SGHWR, nor have we listed standard radiation monitoring equipment. Some assets (e.g., ALES and TRS and their equipment) are not listed because we plan to complete using them before our system is fully functioning.”
“…the Asset Management programme is described. The process for identifying the assets is also described (it is noted that assets that will be decommissioned before the Asset Management programme is up and running are not included).”
“The bidder has addressed the requirements In addressing the scoring criteria the bidder has not explained how it will manage and continually review critical assets in the context of past performance, future demand and capability. The headings are provided in the submission along with assertions about what maintenance and inspections will be performed based on the current understanding. Otherwise the submission has addressed the remaining scoring criteria.”
“The bidder has addressed the requirements and scoring criteria. The submission could have been improved by being more discriminatory in its approach to the identification and management of critical assets.”
“…no more than a high-level and generic statement that monitoring, assurance visits and review of the safety case will take place.”
“The ownership and approach to managing assets overall is clear....The response to dealing with past performance and future demand is a non material inconsistency (it is noted that the crane use will be minimised) and shows a lack of understanding of how this is done in good practice environments by modelling ageing mechanisms and applying a risk based strategy to managing the assets. The response does not effectively deal with the bidder’s own recognition that failures have happened in the past, learning from the failures is helping to inform their strategy and that strategy is further being informed by an assessment of what that means for the asset management regime going forward relying on a reactive rather than a risk based approach which the bidder claims will be executed. This is a non material inconsistency.” 472. The reason given for the score is that RSS’s Tender Response contained “a non material inconsistency” with its proposed proactive management approach. The inconsistency is not properly identified and in my view is a misplaced criticism. Seeing an inconsistency, where there is none, is a manifest error in my judgment. Mr Grey said that it might have been better if the consensus rationale had referred to: “… an omission, in that the asset management approach did not make sense without further information that was missing.” {ZA-CON/2/81} {ZA-CON/2/81} However, the Consensus Rationale itself recorded that “the ownership and the approach to managing assets overall is clear” {U/4/56} and it is difficult to see what the omission is. The consensus comments did not deal with the ventilation system at all, and this therefore falls to be considered in terms of the second stage of the test I must apply if the reasons available to Energy Solutions at the time of issuing proceedings demonstrate unlawfulness. 473. Mr Grey said that RSS’S approach (and one that he criticised) was: “…to nurse the CXPP cave crane through to March 2017 on a reactive basis (i.e. to wait until it breaks down again).” {ZA-CON/2/76} reactive basis (i.e. to wait until it breaks down again).” {ZA-CON/2/76} I find that to be an inaccurate characterisation of the Tender Submission for this Requirement. Figure 410-18 identified that maintenance (as required by the site maintenance plan) included planning so that appropriate preventative maintenance would be carried out during scheduled downtime between planned campaigns of ILW removal {Q/26/18}. The proposal was for a team, which was identified, to work out the appropriate surveillance and maintenance for each asset taking account of the functional performance requirements and any specific vulnerabilities identified {Q/26/17}. This would consider whether adjustments in operations, maintenance and monitoring regimes would be required and this was shown in Figure 410-20 {Q/26/20}. This is not “waiting until it breaks down again”. 474. Given the nature of the failures to date – which were, as RSS stated “unique and not repetitive” – it could not be predicted which components of the Cave Crane would fail. RSS stated that: “If a failure appears to become repetitive, replacement parts will be fabricated and stocked for future repairs.” {Q/26/18} Energy Solutions also draws attention to the fact that the crane was only planned to be used until March 2017. 475. The artificiality of the position adopted both by Mr Grey in his evidence, and the NDA, is demonstrated by the suggestion that it would have been possible to have considered which components had not failed since 1977 and to have tried to “model their ageing, future demand and capability” in order to anticipate whether they would fail by March 2017 {ZA-CON/2/80} {Day13Z-CON/104}. The Consensus Rationale specifically criticised RSS for failing to show how it would be “modelling ageing mechanisms”. 476. There was no stated requirement for such modelling to have been done by any of the bidders. Lack of modelling does not appear anywhere in the scoring criteria. The evidence of Mr Grey on this point, and the approach of the NDA to this Requirement, demonstrates in my judgment the NDA demanding a counsel of perfection on the part of RSS concerning the Cave Crane. Certainly, an RWIND tenderer could have interpreted the SORR as not requiring such modelling. 477. In any event, Mr Grey could not explain how such modelling could be done nor could he identify such details as had (or had not) been made available regarding performance of the crane from 1977 onwards in the data room to enable this to be done {Day13Z-CON/104}. RSS had in any case proposed to fabricate and stock replacement parts for future repairs if any failure appeared to become repetitive. This was criticised by Mr Grey {Day13Z-CON/106} on the basis that “what they hadn’t told us was what that meant”
“…which label is put upon the point is immaterial to the substance of the point and to the score awarded.”
“…some deficiencies could be characterised in either way, depending upon how the evaluators looked at it”. {ZA-CON/2/81} 480. I do not consider that approach to be correct. The former point relates to good practice asset management, and whether that was to be applied to the specific asset in question. That could amount to a failure to observe good practice. The latter point is a failure to identify management proposals within the relevant context, in other words what has happened in the past and what it is proposed to do in the future. They are different points. The NDA wishes to have them dealt with as the same because the consensus rationale (prepared by a team of SMEs, having applied what I have already found to be the wrong measure of good industry practice) identified what was said to be an inconsistency. Upon analysis, and using the correct approach to good industry practice, there is no inconsistency and nothing can be pointed to by the NDA within the relevant part of the RSS Tender Submission as being inconsistent. However, to avoid the obvious consequence – namely a finding of manifest error and an increased score – the NDA and Mr Grey sought to explain the consensus rationale as meaning something entirely different, namely that something was missing that should have been included. 481. Even if that approach were to be justified – and I do not accept that it is – it was manifestly erroneous for the SMEs to require modelling of the type identified, and marking the submission as though such modelling were required. Since such modelling was nowhere stated in the SORR as being required, and I find that good industry practice would not have required such modelling, the NDA cannot escape a finding of manifest error so far as the Cave Crane is concerned. It is correct that the SORR itself {J/10/13} provides (in paragraph 1.9): “Guidance on the concept of a ‘material omission’ or a ‘material inconsistency’”
“A. CXPP was there to facilitate the removal of tritium from the pins, over an operational regime. During the process of doing that, tritium was released into the environment, it was absorbed into the various surfaces, and so on and so forth, and the ventilation system was designed and implemented with the operations in mind. The change to a decommissioning regime would then change what you were doing. It would release more tritium, more dust, so on and so forth. So the demand on that system would change.” 483. I find that it was not manifestly erroneous on the part of the SMEs to look for some sort of analysis within the RSS Tender Submission for how this change of use would have an effect upon the maintenance regime of the Ventilation System. This point was not addressed at all by RSS, which I consider to be have been an omission. In my judgment therefore, the score for this Requirement remains 3. The answer to the issue is therefore as follows. Agreed Issue 20: The score of 3 was not lawfully awarded given the reasons provided by the NDA prior to the issue of proceedings. However, upon analysing the correct score, the approach adopted by RSS concerning how it would manage the CXPP Process Area Ventilation System, which it had identified as a critical asset, contained an omission, namely consideration of the different demands upon that system as a result of the change from an operational to a decommissioning regime. Accordingly, the correct score would have been one of 3 in any event. 585. B2. Assumptions to bound scope and cost – Nodes 405, 410, 408 484. The SORR required identification of the assumptions to bound, or delineate, both scope and cost. 485. The Nodes affected by this issue are numbered and entitled as follows: 1. Node 405 Spent Fuel and Nuclear Materials Management; 2. Node 410 Sample Project 1: Preparing Chapelcross CXPP and B141 for Interim State; 3. Node 408 Delivery of Winfrith Interim End State. The Nodes are not dealt with in numerical order in the Agreed List of Issues, which is why Node 410 is dealt with in this judgment before Node 408. 486. The Requirements are 5.3(k) for Node 405, and 5.3(i) for each of the other two Nodes. These state: 1. Node 405.5.3(k): “A table must be included in this section to detail any assumptions that Bidders are making in order to bound the scope and cost. Such assumptions must be specific to the approach and clearly bounded. The rationale for making the assumptions should be explained together with the identification of any risks associated with the assumptions. Please see paragraph 1.4 in the Introduction.”
“A description of how the Regulatory Requirements will be managed to secure the specific requirements of the Client Specification that relate to Spent Fuels and Nuclear Materials Management including: (i) Identification of key Regulatory challenges on which the strategy is dependent, including any notable technical details that will need to be justified in order to obtain Regulatory concurrence; (ii) Description of the enabling works that will be undertaken to address these challenges; and (iii) Description of how the Bidder will undertake engagement with Regulators on securing approvals (if any) necessary to deliver the strategy and the ongoing development and implementation of the strategy” {J/10/195}. Care should be taken because confusingly, Requirement 5.3(i) makes use of the lower case (i) in two places, firstly for the Requirement alphabetically between Requirements 5.3(h) and 5.3(j), and also a lower case Roman numeral (i) as the first of (i) to (iii). 3. Node 408.5.3(i): “A table to detail any assumptions that Bidders are making in order to bound the scope and cost. Such assumptions must be specific to the approach and clearly bounded. The rationale for making the assumptions should be explained including the identification of any risks associated with the assumptions. Please see paragraph 1.4 in the Introduction.”
“Addresses all elements of the Requirement; Identifies the Bidder's assumptions and demonstrate, in the opinion of the evaluators, how these fully bind the scope of the Evaluation Node; Provides the rationale for the Bidder's assumptions; and Contains no omissions or inconsistencies.” 2. A score of 3 (Fair) was for where the response “Addresses all elements of the Requirement; Identifies the Bidder's assumptions but, in the opinion of the evaluators, does not demonstrate how these fully bind the scope of the Evaluation Node; Provides the rationale for the Bidder's assumptions; and Contains no material omissions or material inconsistencies.” 3. A score of 1 (Unacceptable) was for where the response “Does not address all elements of the Requirement; or Addresses all elements of the Requirement but contains material omissions or material inconsistencies, including a failure to identify a key handover point that sets the scope boundaries.” 488.
“assumptions are used to bridge gaps in planning knowledge in order to bound scope, schedule and cost estimates....There should generally be an attendant risk that the assumption will prove not to be true....”
“The principal purpose of the assumption is to act as a bridge in the planning process. So it is where you are very unsure about what you are going to do, as opposed to – I mean, if you were very sure about where something was going you wouldn't need an assumption.”
“Yes, I think this is a – again, this is in the context of a plan. There are degrees of uncertainty. The plan is by its nature a construction, but on the basis that you know something is particularly uncertain, it will need an assumption. If something is fairly well understood, then it won't.” 494. A start, or end, condition is a parameter defining the scope of any particular project or Node, set by the NDA. It is self-evidently not an assumption by the bidder. An Authority Assumption is similarly not an assumption by the bidder either. It is an assumption stated by the NDA. Characterising an assumption within this tender process as something used to deal with uncertainty is broadly accurate, because there would be no point in asking for a table of “assumptions” (as the SORR did), and seeking explanation for the rationale for making it and the risks attached to it, unless there was some uncertainty attached to each “assumption”
“The organisation can be changed at the same time as fuel-free status is declared.” {Q/21/14} Accordingly RSS’s “approach to transition for people” included: “…timely preparations aimed at ensuring a smooth phase transition at the critical point…” [and] “…set up of a specific project to manage all aspects of reorganisation through management of change with our Resource Management Centre.” {Q/21/15} Once they were within that project, the people were outside the scope of this Node. Mr Davies made this clear in his evidence, but that evidence is not necessary as this can be seen on the face of the Tender Submission itself. What happens after the end of the programme is unnecessary to bound the scope of the project. There is no uncertainty that requires an assumption to bound scope. When this was put to Mr Grey he said in response {Day13Z-CON/150}: “We don’t know whether the scope that is described in the body of the document is the correct scope because there’s no scope bounding assumption associated with it.”
“Sellafield Limited has accepted responsibility for the fuel.”
“…transfer all Spent Fuel off-Site to Sellafield for reprocessing in line with the extant Magnox Operating Programme planning guidance dates…”{K/6/42} The NDA had to receive a: “Statement that all Magnox Spent Fuel has been sent offsite to Sellafield accepted by Accountable Person(s)”
“This response addresses the Authority Statement of Response Requirements (SORR) for Integrated Waste Management (IWM). Section 407.5.1 of this response provides an indicative Integrated Waste Strategy (IWS) which encompasses, at a high level, all waste management activities that will be undertaken by Magnox and RSRL during the duration of the contract, e.g., associated with Intermediate Level Waste (ILW) retrieval and packaging; Fuel Element Debris (FED) retrieval and treatment; Pond clean-up; and Deplant and Demolition (D&D) Programmes activities etc.”
“Integrated Waste Management is responsible for the transport of containers onsite and offsite and disposition of all waste.”
“RSS IWM is responsible for the management and costs for waste transport and disposition.”
“Bounds scope between the Sample Project and IWM. Schedule conflicts in receiving containers from projects at storage facility of disposition queues.”
“Q: Can we look at what you said when you evaluated this, at {T/130/623}. Do you see at the top of the page, on 18th December, you originally wrote in consensus a score of 5: "A table has been included listing assumptions, the rationale for the assumption and the associated risks." Do you see that? A. Yes. Q. But your first assessment was that there were no omissions from the assumptions table, agreed? A. That is correct. Q. Then, the next day you have added in a new two sentences saying that: "Whilst there is an assumption in respect of waste management in general and an assumption in respect of ISF construction completion would have been expected. Given the importance to the project of the ISF this is considered to be an omission." And you scored it at 3, didn't you, that day? A. Yes. Q. It is right, isn't it, that in fact you printed off and signed the consensus at that point with the score of 3? A. I don't recall. Q. Then two months later there was the Burges Salmon review; isn't that right? We can pick that up at page {T/130/622}. Do you see on 17th February you changed the score but not the rationale? Do you see that? So it became a 1. A. Yes. Q. Is it right that you can't recall how that came about? A. Not in detail, as I mentioned before. The usual output from the Burges Salmon review was an apparent mismatch between the score and the consensus rationale. We clearly took a look at it again and decided that the rationale looked about right and it was the score that we decided that needed to be adjusted to reflect that. Q. But, in fact, if the rationale had stayed as it was, the correct score was 3, wasn't it, because that was the correct score for a non-material omission, isn't it? A. 3 is the correct score for a non-material omission, that is correct. Q. That's what you originally put in your consensus rationale and scored it at 3. This entry, the score no longer matches the rationale, doesn't it? A. I think there is two parts to that. I think originally the absence of the ISF flagged up that there was a mismatch. We took a look at it again by the look of it and said: yes, the ISF is missing and needs to score a 1. Q. Then what happened is that on 28th February the word "material" is added in before "omission", yes? A. Yes. Q. Is that another change following some further Burges Salmon review; is that right? A. I don't recall. Q. That was the final published version of the consensus rationale, wasn't it? A. It is the last entry, so it must have been, yes.” "A table has been included listing assumptions, the rationale for the assumption and the associated risks." "Whilst there is an assumption in respect of waste management in general and an assumption in respect of ISF construction completion would have been expected. Given the importance to the project of the ISF this is considered to be an omission." Q. Is it right that you can't recall how that came about? Q. That was the final published version of the consensus rationale, wasn't it? A. It is the last entry, so it must have been, yes.”
"Integrated Waste Management is responsible for the transport of containers onsite and off-site and disposition of all waste."
“…. the evaluators accepted ....the completion/availability of Interim Storage Facility being outside the scope of the project”
“…a failure by RSS to identify the ISF as a key handover point”
“…since RSS did not identify the ISF as a key handover point, RSS was automatically scored 1”
“24. The issue is whether a score of 1 was lawfully awarded on the basis that RSS’s assumptions should have included the construction of the interim storage facility (ISF), as a key handover point or one whose omission as an assumption was sufficiently serious to be a material omission.”
“…leaves open the point at which responsibility transfers from Sample Project 1 to Integrated Waste Management, and in particular how matters rest if, at the time when the waste is ready to be packaged and moved, the ISF is not available to receive it.”
“The Project is also constrained by the commissioning of the ILW interim storage facility. The ILW in CXPP and B141 cannot be packaged until the route for an environmentally controlled storage facility is available”
“5.3(i) PASS (but needs more on hand-over for waste management) List does not appear to be complete: e.g. is work dependent on the ISF; dependent on IS definition (bound scope and cost)”
“A. My reading of it, my Lord, is that, yes, the interim storage facility could affect the schedule of the project. It constrains the schedule of the project, it may alter that, and there does need to be a route for environmentally controlled storage. But that doesn't necessarily have to be the ISF.”
“Past facility spills and leaking underground contaminated piping/equipment have left contamination levels greater than anticipated, requiring removal of contaminated soils that exceed the IES criteria.” {Q/24/7} The “mitigation activities in scope” that go with this entry are: “IESR Manager accelerates characterisation of soils and performs groundwater modelling. If warranted, soil removal action or other remediation (in-ground barrier, stabilisation, etc) is performed.”
“…the other parts of the response which were referred to in the consensus rationale are not irrelevant, because they provide further context for the interpretation of Figure 408-6”
“…in the evaluators’ opinion there are no omissions and inconsistencies”
“…conduct initial ground surveys to confirm no past facility spills or underground contamination requiring removal of contaminated soils. Conduct early discussions to reach agreement on IES criteria with the Regulator, and use precedents to allow the use of contaminated rubble as backfill”
“A Demand-Driven Approach at an Appropriate Size and Scale: An emphasis on providing outcome-based, quality and cost-effective delivery of [Common Support] functions, activities, and services that enable safe, secure, and compliant mission delivery and are more oriented around front line needs.”
“The capabilities and competencies required by functions during the main phase of delivery are seen in Figure 409-45, Head Office Organisation Structure for Main Phase of Delivery and further discussed in Section 409.5.3(i)”
“The bidder has responded to the requirements and scoring criteria but has not clearly or fully defined what competencies will be required referring to roles”
“The SMEs found the appropriate references to roles but did not find clear and full descriptions of competencies”
“…whilst roles have been described this requires evaluators to infer the competencies”
“5.1 It is essential that all personnel whose activities have the potential to impact on nuclear safety are suitably qualified and experienced (SQEP) to carry out their jobs….The licensee should therefore put in place robust arrangements for identifying its competence needs and assuring these are met and maintained.” 5.2 Training is a fundamental mechanism through which personnel acquire, and maintain, the skills and knowledge needed to perform a job to defined standards. In other words, training should be instrumental in developing and sustaining competence. IAEA has defined competence as ‘the ability to put skills and knowledge into practice in order to perform a job in an effective and efficient manner to an established standard’. ONR concurs with this definition, which is widely accepted within the international nuclear community. Other factors contributing to a person’s competence include the person’s prior experience, aptitudes, attitudes, behaviours, skills and qualifications. Competence can therefore broadly be equated to SQEP.”
“…in reality....a list of aspects of the roles in question, and certainly not...a satisfactory identification of competencies”
“…left opaque what the NDA was contending that the “competencies” were that RSS had not satisfactorily identified.”
“…nothing specific about what they are – it just identifies the areas in which skills, knowledge and capabilities will be required”
“...if you think about competencies at a functional level, which was the way we had, and a competence being something, to do something successfully and efficiently is effectively what a competence is looking for, we felt that these types of descriptors were efficient in terms of departments responsible for carrying out assurance on behalf of the business would need to have the competence of being able to successfully carry out audit, be able to carry out licensing and to be able to undertake that type of activities. And they were the competencies in order to carry out those activities also.”
“Required competencies include skills and knowledge associated with characterisation, design and assessment, hazard removal and building modification work such as roofing and cladding”
“Bidders must describe their strategy for Common Support Functions including: (d) Provide a description of no more than 5 of the highest rated challenges and (using the tabular form described below) no more than 10 of the highest rated risks (5 threat and 5 opportunity) associated with the implementation of the Bidder’s strategy for delivering the outcomes required in the Client Specification, any threat mitigation activities and activities to exploit the opportunities the Bidder proposes to undertake to address such threats and opportunities and the impact of those activities on the threats or opportunity, as applicable, including....” (d) Provide a description of no more than 5 of the highest rated challenges and (using the tabular form described below) no more than 10 of the highest rated risks (5 threat and 5 opportunity) associated with the implementation of the Bidder’s strategy for delivering the outcomes required in the Client Specification, any threat mitigation activities and activities to exploit the opportunities the Bidder proposes to undertake to address such threats and opportunities and the impact of those activities on the threats or opportunity, as applicable, including....”
“Our approach to risk tolerance and the extent to which particular risks are elevated to the attention of the SLCs’ Executives and Boards will be based on the risks PID score. Risk owners will be advised of risks that are above the escalation threshold of a PID score of four. Any risk above a PID score of ten is escalated to the Executive.”
“The concept of risk tolerance is important from a strategic point of view. The scoring table B required bidders not only to identify risk tolerances but to set out a structured approach to risk management. To score a 5 the bidder must “demonstrate a structured approach to the management of threats and opportunities including determining risk ownership, tolerances and the approach to information gathering and monitoring”
“…simple level of risk, or the point at which risk renders a process or output undeliverable”
“Q: ……….I have to suggest to you, Mr Grey, nowhere in the part of RSS’s response which addresses this is it suggested that it regarded risk tolerance as the point at which risk renders a process or output undeliverable. A. That is correct, my Lord. I think these words that were going into the defence were morphing in response to questions that had been raised by RSS through the process. I believe, and I recall to the best that I can, that that's the reason that those kind of words were being used here. I agree that those things did not appear in RSS’s tender.”
“Q:…..So that's your witness statement, Mr Grey. A. That is correct. Q. You just told me you didn't agree with that, didn't you? A. I did. I think that's an error I have made there. Q. Well, which is the error? A. In my statement. Q. So did you evaluate RSS’s tender response using the approach to tolerance set out in your statement or the one you have just given? A. My statement covers a number of aspects. If you are referring to that single sentence, my response is the same: we evaluated it not against what I have stated there, but against what I made in my comments just a few moments ago. Q. Do you accept, Mr Grey, that if you had evaluated RSS’s response against the definition of tolerance set out in paragraph 441 [of the witness statement], then RSS had addressed the risk tolerance in that sense? A. I disagree with that. I refer back to my point about the process that was described in the bid about the use of the PID scores and the fact that whilst PID scores were presented, due to the rest of the information that was presented in the bid it was impossible for us to understand what that meant. Q. Can you explain how it was that this error in paragraph 441 came about? A. I can't explain that.”
“…we were disappointed that the response did not set out specific tolerances for the specific risks that were identified”
“…indicate the boundaries within which the enduring validity of the approach remains [which will] define key parameters of performance and serve as control points and limits, at which point the overall CS strategy and/or approach should fundamentally change”
“The range in which the risk can be borne or mitigated without fatally undermining the project or output, so allowing for intervention to achieve risk management or mitigation before reaching an end point where the process or output is fatally compromised.”
“…the range in which the risk can be borne or mitigated without fatally undermining the project or output”
“Strategic tolerances are qualitative or quantitative indicators about the health of your strategy that, if breached, trigger a review of the strategy.”
“There is no reason why a tolerance expressed as a limit is not a "true" strategic tolerance. An approach whereby strategic tolerances are expressed as limits which, if exceeded, would indicate a fundamental failure of either strategy or approach and require an appropriate change to be made is consistent with good industry practice and good project management practice.”
“Process Regulatory acceptance of Regionalised and Centralised CS model Tolerance If Regulators do not accept the proposed move to a Regionalised and then Centralised model, RSS will be unable to implement the planned CS Strategy Confirm and Monitor Early, regular engagement with Regulators to determine any areas of concern, with clear agreed actions to overcome them and enable the appropriate organisational model Responsibility Transformation Director/Commercial & Business Director”
“….they simply describe the consequence of matters going wrong in a particular respect, or (at best) identify a point at which, because of those matters having gone wrong, the strategy has already failed”
“These are in many ways boundaries, or they are tolerances that are set so that if they become breached, it is a trigger to everybody, including the NDA, that there’s something quite seriously wrong with the programme. As it says, you track those on a reasonably sensible frequency and report it in to whatever management arrangement you thought was necessary. If, by some means, there was some kind of management action that could be taken to, if you like, steer the boat away from the rock, then obviously it would be sensible to do that. But if there wasn’t then you would have to reconsider your strategy.”
“…it is a point where you are effectively failing. You cannot achieve what you set out to do.”
“Bidders must submit their strategy for Nominated Staff Appointments relating to the SLCA which must demonstrate for each Requirement at 5.1(a) to (f); 5.2(a) to (d), 5.3(a) to (c) and 5.5: The process that the Bidder will put in place to ensure the Requirements will be delivered with respect to the Nominated Staff; The anticipated outputs from each process; and The Bidder’s rationale for its choice of process to delivering the anticipated outputs and supporting evidence.”
“describes the processes that the Bidder will put in place to address all the individual elements of each Requirement; Describes the anticipated outputs for each of the processes; Provides the Bidder’s rationale for its choice of process to deliver the outputs in relation to each of the processes; and Provides supporting evidence that in the opinion of the evaluators is relevant to give confidence in the delivery of the outputs for each of the processes.” 2. a score of 4 if the response: “.... provides supporting evidence that in the opinion of the evaluators is relevant to give confidence in the delivery of the outputs for 75% or more of the processes.” 3. a score of 3 if the response: “....provides supporting evidence that in the opinion of the evaluators is relevant to give confidence in the delivery of the outputs for 50% or more of the processes.” 4. a score of 2 if the response: “….provides supporting evidence that in the opinion of the evaluators is relevant to give confidence in the delivery of the outputs for 25% or more but less than 50% of the processes.”
“Having reviewed the evidence provided we have concluded that, although there was some for each part of this requirement in 2 subsections it was too limited to be 100%. We have agreed that evidence for the entire section is between 50 and 74% and have scored as such.”
“Each element of 5.3 (a)-(c) constitutes 33.3%. Since no evidence was provided that was deemed to be relevant for 5.3(a), supporting evidence was provided for a maximum of 66.6% or the processes, scoring a 3.”
“In short, the SMEs considered that, where RSS had provided a satisfactory answer in relation to one process, and unsatisfactory answers in relation to two processes, the right overall conclusion, looking at matters in the round, was that it had provided sufficient supporting evidence to give confidence in two-thirds of the outputs for Requirement 5.3, so entitling it to a score of 3 under this requirement.”
“This approach was believed by the SMEs at the time to be an appropriate one, but the Defendant will say that it was in fact incorrect.”
“For the purposes of evaluation, `Requirement’ means a requirement of the SORR at the level which is being evaluated for example: Requirements 5.1, 5.2, 5.3, 5.4 and 5.5 of the Nominated Staff Appointment Evaluation Node”
“It is clear, therefore, that scores were to be awarded at the 5.1, 5.2, 5.3 and 5.5 level. There would not be separate scores for separate lettered elements. Beyond that, however, these provisions do not assist with how the marking scheme is to be applied.”
“448. There are two questions of construction which need to be determined. The first is whether the supporting evidence that was provided needed to relate specifically to each and every anticipated output described in the bidder’s response. The second is how the question of confidence in relation to a percentage of processes should have been approached. 449. On the first question of construction, ES’s case is that “supporting evidence” was required for each output for each process that the bidder in question chose to identify, and that CFP failed to provide such evidence and should have been marked down. Supporting evidence effectively meant here the bidder’s past experience from which confidence in future delivery could be obtained. 450. On the second question, NDA’s position is that the evaluators took an overly generous approach to RSS, with the result that it passed the threshold when it should otherwise have failed. 451. Ultimately, whilst the judgments about what counted as supporting evidence in relation to a particular matter were ones for the evaluators, subject to manifest error, the construction of the scoring tables is a matter that falls to be objectively determined. Therefore, whilst both Ms Hanson and Ms Wilson were cross-examined about these matters, there is necessarily a limit to how far that can take either party. 452. On the first question, it is submitted that the right answer is that: for each numbered Requirement to be scored, there are a number of lettered elements; for each element, the bidder will set out a process for addressing it; and for each element, there will be outputs which the process is designed to produce. So the starting-point is to ask whether, in relation to a particular lettered element, the bidder has produced supporting evidence that gives confidence in the delivery of the outputs relevant to that element. 453. That means the outputs for that element generally – it is not necessary to ask the question specifically about each and every different output that may have been listed by the bidder. Nor does the bidder necessarily have to produce supporting evidence which shows its past experience specifically in relation to every single thing it may have identified that could be called an output. 454. On the second question, the right approach is to look at the different lettered elements, and ask whether they have received, in effect, a tick or a cross in terms of confidence in the delivery of the outputs. Then, when it comes to scoring the Requirement and knowing for what percentage of the processes there is confidence in the delivery of the outputs, it is necessary to ask how many lettered elements there are in that Requirement, and how many have received a tick. If a Requirement has four lettered elements, and three of them have received ticks, then the evidence provides confidence in the delivery of the outputs for 75% of the processes. 455. What that means in practical terms here is that, if only one out of four elements receives a tick for the supporting evidence, then it is not possible to say that there was “half confidence” about the other three elements, so leading to confidence in 62.5% of the processes overall. That is why RSS would have failed, if the evaluators’ factual conclusions were correct, because under Requirement 303.5.3 it needed such an exercise in giving part credit for unsatisfactory elements to get over the threshold score. That was a three-element requirement. RSS’s evidence was only regarded as giving confidence for element (c), counted as 33%, but it was given half credit under the other two elements (16.5% each), leading to a total of 66% and a score of 3, rather than 33% and a score of 2 (if no credit had been given for elements (a) and (b)). 456. It is submitted that this approach to the second question simply follows from the words used. The question of whether there is confidence in a particular matter is a binary question – either there is or there is not. The scoring table does not contemplate degrees of confidence. 457. Returning to the first question, it is submitted that the proposed construction (of looking at supporting evidence on an element by element basis) is correct, for the following reasons: 458. First, it is consistent with the language used in the scoring table. It is true that the table talks about “the processes” in the plural, but that is because the score that is ultimately awarded is for the Requirement as a whole. So in a four–element Requirement, there are four processes. The use of the plural makes sense wherever it appears; 459. Secondly, it avoids the consequence of the RSS submission, that the question of what evidence has to be provided, and exactly how the response falls to be scored, depends upon precisely how many distinct “processes” and how many distinct “outputs” the particular bidder happens to have identified. Avoiding that consequence is desirable if not essential, for two reasons. One is that it cannot be right to allow bidders the ability to manipulate the scoring system according to how they choose to structure their submission. The other is that (as the cross-examination demonstrated) the question of when one sentence in a submission amounts to a process or an output distinct from what is described in another sentence, is wholly arbitrary and incapable of objective application. There is no objective way of knowing when one process stops and another starts – whereas if the whole of a bidder’s methodology for delivering what is called for by a particular lettered element in the SORR is treated as a single process, everything falls into place.”
“…it cannot be right to allow bidders the ability to manipulate the scoring system according to how they choose to structure their submission”
“A description of the Bidder's approach to Nominated Staff development of a Magnox SLC Management team and a RSRL Management team (or a combined Magnox SLC and RSRL SLC Management team if this is the Bidder's proposed solution) that must include: (a) Selecting a balanced team with complementary skills, knowledge and experience, to cover all identified roles and competencies; (b) Post-selection, developing the Nominated Staff into a cohesive and strategic and managerial unit; (c) Filling of any identified gaps in skills and competencies; and (d) A demonstration of leadership behaviours of the team as well as an ability to work competently as individuals. ”
“5.2(a) Describes the processes that the Bidder will put in place to address all the individual elements of this Requirement; Describes the anticipated outputs for this process; Provides the Bidder's rationale for its choice of process to deliver the outputs in relation to this process; and provides supporting evidence that in the opinion of the evaluators is relevant to give confidence in the delivery of the outputs for this process. 5.2(b) Describes the processes that the Bidder will put in place to address all the individual elements of this Requirement; Describes the anticipated outputs for this process; Provides the Bidder's rationale for its choice of process to deliver the outputs in relation to this process; and provides supporting evidence that in the opinion of the evaluators is relevant to give confidence in the delivery of the outputs for this process. 5.2(c) Describes the processes that the Bidder will put in place to address all the individual elements of this Requirement; Describes the anticipated outputs for this process; Provides the Bidder's rationale for its choice of process to deliver the outputs in relation to this process; and provides some supporting evidence that in the opinion of the evaluators is relevant to give confidence in the delivery of the outputs for this process. Very technical solutions without focussing on the softer, but just as important management and leadership skills sets. 5.2(d) Describes the processes that the Bidder will put in place to address all the individual elements of this Requirement; Describes the anticipated outputs for this process; Provides the Bidder's rationale for its choice of process to deliver the outputs in relation to this process; and provides supporting evidence that in the opinion of the evaluators is relevant to give confidence in the delivery of the outputs for this process. Having reviewed the evidence provided we have concluded that, although there was some for each part of this requirement in 1 subsection it was too limited to be 100%. We have agreed that evidence for the entire section is between 75 and 99% and have scored as such”
“…the reference to softer management and leadership skills did not impact upon the evaluation”
“…there is no intended difference in meaning between “limited” and “some”
“…the comment about ‘softer skills sets’ is not about supporting evidence. It was in the nature of a feedback point….”
“…the processes that [it] will put in place to address all the individual elements of this Requirement”. “Onboarding” was one of the processes. However and in any event, the arrangements for “onboarding” were illustrated on Figure 303-4 {Q/17/3} and were described in response to 303.5.2(c) at {Q/17/4}. Ms Hanson accepted in paragraph 31 of her Second Witness Statement {C/12/8} that: “…it is correct that the RSS tender response refers to and describes a process of ‘onboarding’.”
“Our process for filling gaps in skills and competences is drawn from our experience of leading the implementation of MCP10 and the continuing provision of SQEP Nominated Staff”
“Q: "MCP10" stands for "management control procedure 10", doesn't it? A. I believe it does. Q. If we look at it quickly so we can understand it {V/24.1/1}. Is that the document MCP10? A. It appears to be. It is not a document. It is a Magnox internal one, so it is not the one that I would generally use. Q. It was one of the documents in the NDA's data room provided to bidders; isn't that right? A. I have no idea. Q. It was the current procedure applicable across all the Magnox sites, which were ten of the 12 sites that were the subject of the bid, yes? A. I understand in my preparation for this case that that was what it was when I looked at it. Yes, that's what I believe it was. …….. Q. You accept this was the current development procedure, wasn't it, applicable at ten of the 12 sites? A. Sorry, the current what procedure? Q. Learning and development procedure. There had to be such a procedure to comply with the licence conditions, didn't there? A. Was this the current one? I don't know if it was. Q. If we go back to {V/24.1/1}, this is dated December 2012. Is this the one that was current when the competition was being run? A. It does appear that it was. Q. Isn't a bidder entitled reasonably to expect that a subject matter expert would be familiar with the relevant documents in the NDA's data room? A. Up to a point. Do we know every document that is there? No. Do we have a general overview of the requirement by the site licensing company, not by the NDA, of the issues that relate to SQEP? Yes. Did I know in detail what the MCP10 process was? No. Should I have? No. Q. At least one of the subject matter experts should be expected to know what the current procedure in relation to this in the data room was; would you agree? A. My Lord, I don't agree.”
“The rationale for our choice of approach builds on both Parent Companies' experience of building and sustaining high performing teams.”
“description of the Bidder's approach to Nominated Staff talent identification and succession planning”
“(a) Removal and debriefing”, “(b) Incorporating the selected candidate into the established team” and “(c) Sharing of skills, knowledge and experience”
“[i]n the opinion of the SMEs, the evidence provided by RSS in respect of those two processes [by which it appears the NDA meant the two elements (a) and (b)] was limited and generic, and did not give confidence in delivery in respect of outputs in either case”
“the approach has been previously applied in a timely and successful manner, including for the integration of Magnox North and Magnox South and the leadership changes made in order to deliver the MODP.”
“A. To a point I do. I agree that it shows a date. What I don't agree with is that it explains to me properly what debriefing is. They talk in the evidence concerning exit plans, handover plans, but then don't go into detail of exactly what it is. And therefore, it was very difficult to establish evidentially how or what or where they had done debriefing before. The places and time were then put to the witness. A. No, it absolutely -- in that section it mentions a place, Magnox North and South, which are the combined Magnox sites -- there are ten of them -- and a date. But what it doesn't do, by mentioning those, the place and the date, is it still doesn't make the link to debriefing and that was the bit that was missing The places and time were then put to her. A. I come back again to say I wasn't satisfied with debriefing, particularly from an evidence point of view. I bring you back to the evidence section, which doesn't give me details of what -- where they have used the debriefing part before”
“As I explained above (in relation to Requirement 5.2), the purpose of these changes was to clarify that the issue with these elements of the response was not about the quantity or volume or evidence, but rather the extent to which, in our opinion, they gave confidence in delivery.”
“…there was... [no] reference to…how individuals would be integrated into the team”
“…was too generic about the handover process, and lacking in specifics about debriefing and how it had been carried out so as to capture the knowledge and experience of outgoing staff”
“…ensured smooth transitions and transfer of knowledge from outgoing to incoming members of the team”
“…for Bidders to demonstrate the way in which they have calculated their costs in respect of the Sample Projects requirements in order to give the Authority confidence in the Phase 1 Target Cost and the Phase 2 Target Cost . . .”
“(a) The contingency declaration or contingency related bounding statements; (b) The methodology used for estimation of contingency, which must clearly set out the approach to estimating uncertainty, discrete risks and utilisation of management judgment (where applicable); (c) The justification for use of this methodology; and (d) The reasoning for identifying any risk-based/contingency weighted activities, and a description of such riskbased/contingency weighted activities”
“The label used in the site column heading in the Risk Register Extract is, if viewed in isolation, not wholly accurate as it refers only to Oldbury. I do not know how this typographical error occurred (it is possible that the error occurred when the filtered version of the Master Risk Register was extracted for inclusion in the response to Node 113), however, I have compared the content of the line items in the Risk Register Extract to those in the Master Risk Register when it is filtered by the category "SP4 ILW Oldbury" and the information is consistent.”
“Q: I'm sorry, Mr Peel, just before we can go on to the bidder clarification request, can we go back to {Q/11/125} for a moment and leave it on the right-hand side, thank you. I have just been told something that I hadn't previously realised: that the right-hand column, the WBS – is that the work breakdown scope? A. Yes, sir. Q. I'm told that those codes are specific to particular sites within the NDA estate. Do you know about that? A. Yes. Q. Right. Do we see any Hinkley codes in that column? A. Those are all for site 26, which I believe is Oldbury.”
“RSS to confirm that the risk register provided within Volume 3 Book 10 113.3 Contingency section is in support of Oldbury site activities only. RSS to response with a yes or no answer. If ‘yes’, please provide referencing where the Hinkley Risk Register can be evidenced by the Authority.”
“Yes, the risk register that we have provided within Volume 3 Book 10 113.3 Contingency section is in support of Oldbury site activities. Many individual risks on our Master Risk Register are applicable to multiple sites and multiple Nodes. Although RSS identified Hinkley risks and opportunities as a basis for our risk modelling and contingency calculation applicable to Hinkley site, we have found that we did not appropriately code those risks as applicable to this Node. We included the results of our risk modelling and contingency calculation within Volume 5, although we did not include the complete Master Risk Register in Volume 5. We will gladly provide evidence of the Hinkley risks if you deem it appropriate. (The Authority will note that several Oldbury risks within this Node submission make specific mention of Hinkley risks, and when appropriate these particular risks have been coded to impact the contingency calculation for both sites.) RSS modelled and applied contingency on a site-by-site basis as found in the Sample Project 4 Volume 5 (V5 | 117 | 446 of 476), a copy of which accompanies this BCR response. Sitelevel contingencies have been applied to individual site costs, deemed adequate to cover the costs associated with the risks. The total application of contingency across the whole evaluation node can be found within Section 113.1.4.2 Upper CWBS Level Base Cost Estimate Summary Cost on Page V3|113|8 of 239.”
“Describes the anticipated outputs for the relevant Requirement and any relevant benefits, including where applicable how they will contribute to the successful delivery of the SLCA and the Client Specification; Contains no omissions or inconsistencies identified by the Evaluators within this Evaluation Node.” 2. a score of 4 if the response: “Describes the anticipated outputs for the relevant Requirement and any relevant benefits, including where applicable how they will contribute to the successful delivery of the SLCA and the Client Specification; Contains no material omissions or inconsistencies.” 3. a score of 3 if the response: “Describes the anticipated outputs for the relevant Requirement and any relevant benefits, but does not describe how they will contribute to the successful delivery of the SLCA and the Client Specification; Contains no material omissions or material inconsistencies.” 4. a score of 2 if the response: “… does not describe the anticipated outputs and any relevant benefits, for the relevant part of the Requirement, including where applicable how they will contribute to the successful delivery of the SLCA and the Client Specification; It contains material omissions or material inconsistencies.” 5. a score of 1 if the response: “… does not describe the anticipated outputs or any relevant benefits for the relevant part of the Requirement, including where applicable how they will contribute to the successful delivery of the SLCA and the Client Specification; It contains material omissions or material inconsistencies.”
“(i) First, the RSS response failed to provide any, or any sufficient, explanation of the role of programme boards in the organisational structure and management of programmes (as opposed to projects); (ii) Second, the RSS response proposed that programme managers would also act as project manager for all of the projects comprised within their programmes between project gates 1-3 but did not provide any, or any sufficient, detail on what resources and support would be provided to the programme manager for this purpose; (iii) Third, the RSS response included a statement that responsibility for management of each project would transfer at Gate 3 from the programme manager to the relevant ‘site’, but did not explain, sufficiently or at all, what this would mean or how it would work in practice (in particular as regards what powers would, or would not, be retained at programme level in relation to the projects after gate 4); (iv) Fourth, the RSS response repeatedly provided information about RSS’s approach to the management of projects, at the expense of providing detail about the management of programmes – which is what requirement 5.2 called for (project management being dealt with within requirement 5.3).”
“…what support would be provided to the programme manager to undertake duties of project management”
“the Programme Manager is responsible for all aspects of the programme’s projects during phases 1-3". That was repeated elsewhere, such as {Q/19/21}: “During Phases 1-3 the relevant Programme Manager is the single point of accountability for the whole project”; and in terms of finance: “budgets for project work in phases 1-3 are released to the Programme Manager by the PMB as the project passes the appropriate gate” {Q/19/16}. This was effectively accepted by Mr Miller who said {Day16Z-CON/146} that “the fact they are responsible, we understood” and {Day16Z-CON/146} that RSS’s Tender Response “sets out the fact they are responsible for all aspects”. 773. Requirement 307.5.3 was where RSS was to provide a description of “organisational structure (covering senior management and programme management level)”
“It was not clear to us from this tender response whether the programme managers would have any ability to control, direct, change the projects that sat within their programmes”
“…a broad effort encompassing a number of projects and/or functional activities with a common purpose”
“5.3 The Bidder must provide its project management strategy explaining why it has chosen this approach, the expected outputs, including any relevant benefits, and how these will contribute to the successful delivery of the SLCA and the Client Specification and examples of how elements of its proposed strategy have been applied in practice. The strategy must include… (d) The approach to the project development, project sanctioning and subsequent management of project budgets and how this approach will contribute to ensure the scope of work remains affordable and deliverable.”
“…Not clear who develops business case for a project and other activities due to no project manager in post until gate 3/4. Management of budget only appears to occur following gate 3 - not clear what happens before this point. These omissions were identified but we felt they were not material.”
“…during phases 1-3 the relevant Programme Manager is the single point of accountability for the project…the Project Manager is directly responsible and accountable for all aspects of the project during phases 4-5." {Q/19/21} Energy Solutions submits that: “…no one who read RSS’s Tender Response could have missed the point about the single point of accountability for the project up to project gate 3 being with the Programme Manager.”
“Q: So once the budget is released by the PMB, at that point the programme manager is responsible for it? A. I agree, yes, but the question set within the requirement is to tell us about the management of budgets, not who is responsible necessarily, although that could be part of it. All we want to know is how will the budget be managed. If it is okay I could give you a slightly different view of this. It would be fine for a programme manager to manage that budget, but they might manage it within the confines of their programme, so they may be able to make changes within a project as long as the programme stays within its budget. It may be that they wish to apply the same controls and trending etc as they were looking to apply post-gate 3. The problem was none of that is articulated, we just know what happens post-gate 3.”
“The objective of Reactor Site Solutions’ (RSS) Supply Chain Strategic Plan is to leverage the current supplier base through collaborative working to enhance flexibility, delivery performance and supplier relationships. Our approach also promotes the appropriate use and development of SMEs and socio-economic content, enabling a safe, affordable, cost effective, innovative, and dynamic market. Our proposal introduces the development of the Integrated Closure Partnership Agreement (iCPA) model at Magnox and RSRL along with a number of refinements to Tier 2 supplier arrangements. The iCPA is explained further under Section 306.5.1(g), p12. In summary it consists of highly capable organisations selected mainly through secondary competition from existing framework suppliers to speed up implementation. There will also be some new areas of competition to bring alignment across Magnox and RSRL or where the scope is not consistent with the primary competitions, ensuring we remain compliant with the Regulations. We envisage this resulting in approximately 15 delivery partnerships to support key programmes and work areas. Suppliers are an integrated part of our solution through a range of contract mechanisms and collaborative arrangements (aligned with BS11000) established within the terms of package orders or new subcontracts….”
“Propose to move from the extant Magnox SLC and RSRL SLC procurement and subcontracting strategies to its proposed new strategy, including a timetable for the change, a recognition of why the change is required in the context of the SLCA, and the demonstration of an ability to adapt the strategy in the light of what is demonstrably good and successful in the extant strategy.”{J/10/71} Scoring was in accordance with Table 2. To score 4 {J/10/75} the bidder had to provide “information which...demonstrates how it will improve performance outcomes for the relevant Requirement” but a bidder would only score 3 if it provided “information which...demonstrates how it will maintain the performance outcomes for the relevant Requirement”
“RSS do not specify improved performance outcomes elsewhere in their response”
“The score reflects a failure to demonstrate improved outcomes which is a differentiating factor between 3 and 4”
“…when we said in our comments that RSS did not specify improvement outcomes elsewhere in their response, we were in fact referring to the Response to Requirement 5.1(n), not to their response to the Evaluation Node generally”
“Bidders must: (a) Describe the proposed Winfrith IES and identify any residual issues to be addressed in confirming the IES; (b) Describe their strategy for delivery of Winfrith IES and the high level objectives of the strategy; (c) Describe the approach to Regulatory issues....”
“[that it was] the evaluators’ opinion that following the achievement of the IES there should be no continuing need to fence the specific areas proposed (the SGHWR and Dragon reactor footprints)”
“……When I left the project, there was no green line, I'm afraid to say, and the – my intention had been something that looked below, and I was quite surprised why the evaluators never looked at figure 408-26 because the only differences between that end condition was to do with Inutec and our proposal to leave a few roads on the site. So the green line is a mistake, I'm afraid to say. I can't explain any other way.”
"We will fence in some areas to minimise human access and ensure conservation for protected species. It will have the added benefit of restricting public access from areas where intrusion and exposure to buried materials should be prevented."
“The proposed IES is for the site to become heathland, with no remaining facilities, other than the Scottish Southern Electric compound. This is shown in Figure 408-25, Winfrith at IES, p29.”
“…the mistake about the extent of the fencing envisaged fundamentally undermines the stated reasoning. The SMEs thought that RSS proposed to fence off the whole reactor footprints (and/or apparently the green area) and formed the view that that was not consistent with the overall goal of general public accessibility, setting out concerns about perception and so forth. But that was not RSS’s proposal at all. Rather RSS proposed – as a concept – some fencing principally for conservation purposes (with no specific proposal as to the location). That was a manifestly different proposal to the one the SMEs erroneously thought the response advanced.”
“A description of the most important internal and external interdependencies and interfaces between delivery of Winfrith IES and the other strategies and approaches required to deliver the outcomes required by the Client Specification to demonstrate how: (i) The interface management arrangements will be optimised across the Magnox SLC and the RSRL SLC; and (ii) The Bidder will potential opportunities from working with other Authority SLCs and subsidiaries.”
“The submission provides the required table. Interfaces and interdependencies are identified, however, there are a number of omissions and inconsistencies: NDA is not identified, which is key given the precedent setting nature of the work (as identified by the Bidder) Supply Chain is included, but the description of the functional activities makes no reference to the major procurement activity that will be required in procuring the reactor decommissioning partner. There is no mention of the interface arrangements required to manage the TRS drums. There is discussion in the text regarding optimisation with other SLCs – including working with LLWR and sharing decommissioning experience with Dounreay.”
“Table G {J/10/322} provided no basis for reducing the score because of any “omission” of any internal or external interfaces that were not ones that were “key”
“Interfaces with the rest of the Authority are driven by learning from experience and are addressed in Figure 408-34”
“The Level 3 Criteria are to be evaluated by either threshold only or threshold/ranking criteria. The threshold only approach allows the Authority to mandate a high quality level which must be satisfied for Bidder's Tender Responses to be considered and evaluated against this standard only. If a Bidder fails to achieve a threshold, its Tender Response risks being deemed non-compliant in the Authority's opinion and the Bidder may be excluded from the Competition.”
“Tender Responses will be evaluated against the criteria and weightings set out in Appendix 7 (Evaluation Framework) and in further detail in Appendix 11 (Statement of Response Requirements) and Appendix 14 (Commercial (Contractual Terms) Evaluation).”
“6.1 The Statement of Response Requirements contained at Appendix 11 (Statement of Response Requirements) sets out the Authority's requirements relating to all strategy, programme, technical and cost elements relevant to the submission of the Bidders' Tender Responses excluding those elements addressed by Appendix 14 (Commercial (Contractual Terms) Evaluation). 6.2 Each element of the Statement of Response Requirements documents the Authority's requirements and describes the information that the Bidders are required to submit. 6.3 The Statement of Response Requirements also contains the relevant evaluation methodologies for each Evaluation Node contained within it. These have been developed specifically to reflect the factors which the Authority considers to be of critical importance to the identification of the most economically advantageous tender for the Competition.”
“The Authority will evaluate the Bidders’ responses to the Evaluation Nodes in accordance with the relevant weightings and evaluation methodologies set out in section 6 of each Evaluation Node and the Evaluation Node Framework.”
“(b) ..To pass the threshold for this Evaluation Node, a Bidder’s response must achieve a “Threshold” as set out in Table 1 below: Table 1: Threshold Matrix Threshold: The Bidder’s response must achieve.... Below Threshold: The Bidder’s response achieves.... (c) If a Bidder’s response to this Evaluation Node is deemed to be "Below Threshold" (determined in accordance with Table 1), then the Bidder’s Tender Response will be deemed noncompliant and will be excluded from the competition.”
“…all of a sudden requirements that, when they were written, perhaps weren't intended to be – have such a strong effect, you suddenly looked at them and thought ‘These requirements have a really big effect and it is a really serious one’". That leads me to conclude that insufficient consideration was given by the NDA to the effect of the inclusion of threshold provisions in the SORR. It also begs the question of why matters were included as being subject to threshold if they were not intended to “have such a strong effect”
“A: I think, yes, probably there was tied with that and there was the guidance around marking up if in doubt and things like that. So that kind of provided some of the context for that kind of thinking……I think we all felt that it would be very regrettable if it had happened.”
“However, even if the contracting authority has a certain margin of discretion in the context of a negotiated procedure, it is always bound to ensure observance of the terms and conditions of the tender specifications, which they have freely chosen to make mandatory.”
“Put another way, the requirements and criteria in the SORR ought not to be interpreted in such a way that they become a kind of obstacle course in which a bidder may find an otherwise perfectly good tender disqualified because of some minor blemish or through overlooking some point of detail.”
“16. Put simply, it is apparent from the objective background and evidence that (as one would expect) NDA wanted the lengthy and expensive dialogue process for this important contract to result in the submission of four tenders which were all capable of acceptance. That would maximise the chances of bringing about as economically advantageous a solution as possible, and would mean that time spent on dialogue with each bidder would not have been wasted. 17. As the Judge noted during the trial and closing submissions, application of the threshold requirements so as to fail tenders could potentially have led to a situation in which all the bidders were disqualified, which would have represented a commercial disaster. But the point can be looked at more positively as well - for each and every bidder, it was desirable that they should achieve threshold, so that their offer (and especially their commercial offer) would be in the mix and capable of acceptance.”
“The Judge: ….would you please give me your answer to a point that's being put to me by the NDA, which is that they are corrupt agreements? A. The supplemental agreements, you are talking about the supplemental agreements? The Judge: Yes. A. Well, I categorically reject that. It was not a thought that even came into my mind, that that was why these agreements were being put together. It was not explained to me in any way like that by Tim Joyce, in my discussions with Tim Joyce, and to a certain extent with Ian Bowes. So I categorically reject that. It was not even a thought that came into my mind.”
“insofar as any submissions are to be made concerning the impact of these developments upon the findings of the draft judgment, the most sensible course is for those submissions to be made by reference to the draft judgment itself (as corrected for typographical errors) already in the possession of both parties.”
“53. […] In my view the judge ought to have reached the conclusion that, once the allegations in respect of which there was a substantial risk that Nigel Tobias' fraudulent conduct had made a fair trial impossible were put on one side and left out of account, there was no case for relief which remained to be tried. 54. It would be open to this court to allow the appeal against the judge's refusal to strike out the petition on that ground alone. But, for my part, I would allow that appeal on a second, and additional, ground. I adopt, as a general principle, the observations ofMillett J in Logicrose Ltd v Southend United Football Club Ltd (The Times,S March 1988) that the object of the rules as to discovery is to secure the fair trial of the action in accordance with the due process of the court; and that, accordingly, a party is not to be deprived of his right to a proper trial as a penalty for disobedience of those rules - even if such disobedience amounts to contempt for or defiance of the court - if that object is ultimately secured, by (for example) the late production of a document which has been withheld. But where a litigant's conduct puts the fairness of the trial in jeopardy, where it is such that any judgment in favour of the litigant would have to be regarded as unsafe, or where it amounts to such an abuse of the process of the court as to render further proceedings unsatisfactory and to prevent the court from doing justice, the court is entitled - indeed, I would hold bound - to refuse to allow that litigant to take further part in the proceedings and (where appropriate) to determine the proceedings against him. The reason, as it seems to me, is that it is no part of the court's function to proceed to trial if to do so would give rise to a substantial risk of injustice. The function of the court is to do justice between the parties; not to allow its process to be used as a means of achieving injustice. A litigant who has demonstrated that he is determined to pursue proceedings with the object of preventing a fair trial has forfeited his right to take part in a trial. His object is inimical to the process which he purports to invoke. 55. Further, in this context, a fair trial is a trial which is conducted without an undue expenditure of time and money; and with a proper regard to the demands of other litigants upon the finite resources of the court.”
“We consider that this paragraph is not to be read as meaning that a litigant who has demonstrated that he is determined to pursue proceedings with the object of preventing a fair trial is to be taken to have forfeited his right to take part in a trial in every case. Chadwick LJ is careful to emphasise that the litigant’s conduct had put the fairness of the trial in jeopardy and that the court’s power to strike out the proceedings was not a penalty for disobedience with the rules. This interpretation of [54] of the judgment of Chadwick LJ is consistent also withart 6 of the European Convention on Human Rights .”
“…greater latitude to a judge to alter the judgment while it remains in draft as distinct from after it has been formally handed down although inevitably each case will turn on its own particular facts”
“This was by most standards a very detailed and sophisticated procurement exercise, which took nearly 2 years (including a 4 month evaluation period) and for which a budget of£6 million was allocated.”