“I also consider that the court's function in a challenge such as this one is not to substitute its own view for that of the contracting authority on whether a tender has the appearance of being abnormally low. The correct approach, which I consider to be entirely consistent with the approach of the courts to procurement challenges generally and the principles summarised in Woods v Milton Keynes, is only to interfere in cases where the contracting authority has been manifestly erroneous. The courts, in so many cases over the years in this field, have made it clear that their function is not to reconsider and remark every evaluation of each tender in which a challenge is brought. In matters of judgment, the contracting authority has a margin of appreciation. In matters of evaluation, only manifestly erroneous conclusions or scores will be reconsidered. This approach has its parallel in other public law fields, for example decisions of Ministers.”
“ "Manifest error" is broadly equivalent to the domestic law concept of irrationality: see Woods Building Services v Milton Keynes Council[2015] EWHC 2011 (TCC) at [14]; Energy Solutions v Nuclear Decommissioning Authority[2016] EWHC 1988 (TCC) at [312].”
“3.1.1. The Contractor provides the works to deliver a fully-functioning station in readiness for operational delivery. The works comprise: a. management services to Provide the Works; and b. physical delivery of the works.” a. management services to Provide the Works; and b. physical delivery of the works.”
“the management, design, execution, construction, testing, commissioning and completion together with related asset management duties and Delivery into Passenger Service of Old Oak Common Station to budget and programme including the procurement and management of all works packages, stakeholder management and other activities required as the Construction Partner in accordance with the Works Information.”
“ ‘Fee Collar’ 6.11.19 Tenderers should note that HS2 Ltd has set a ‘Fee Collar’ to the Lump Sum Fee evaluation to avoid unsustainable low bidding and to ensure that the successful Construction Partner will achieve a fair level of Fee recovery so that the Construction Partner is incentivised to adopt the desired behaviours (see Part 3 above). 6.11.20 The Fee Collar will be set at a Fee percentage of 7%, in that any Lump Sum Fee which derives from a tendered Fee percentage of less than 7% will be deemed to have breached the Fee Collar. 6.11.21 If a Tenderer tenders a Lump Sum Fee that breaches the Fee Collar, that Tenderer will score 0 for the Lump Sum Fee element of the Commercial Evaluation. 6.11.22 The lowest Lump Sum Fee that does not breach the Fee Collar will receive full marks (10.00) for the Lump Sum Fee element of the Commercial Evaluation. The score for all other Tenderers that do not breach the Fee Collar will be determined as noted in paragraph 6.11.15 above.”
“To give HS2 Ltd confidence a response should include and demonstrate: an organisation approach that will efficiently and effectively manage and deliver in a cost effective way. [Factor 1] that the Tenderer has a management structure tailored to support the particular challenges for Old Oak Common station including reporting lines and interfaces with HS2 Ltd. [Factor 2] where the Tenderer is a Consortium, identification of the lead company with details of the responsibilities to be assumed by each Party, an explanation of how any risks associated with a joint approach will be mitigated and how any potential opportunities could be realised. [Factor 3] organisation chart(s) showing levels of the Management Resource Plan, including all forecast interface and demarcation with the Supply Chain. [Factor 4] a) completed Management Resource Schedule in the form of the template at Appendix C3 detailing an efficient level of resource that the Tenderer demonstrates will effectively manage the Works over the duration of the Contract. [Factor 5] a structure that is flexible and resilient to change over the life of the Contract and is aligned to the Works Package Strategy outlined in ITT Question [E005]; and [Factor 6] that the Tenderer's approach is aligned to its responses to the ITT Questions in this section E. [Factor 7]”
“5.5.7 Tenderers will note from Appendix C that HS2 Ltd expects ITT Questions [E001] to [E010] and [I001] to be answered in a manner that demonstrates a holistic approach to the Tenderer’s technical delivery proposals and the Evaluation Guidance in Appendix C that accompanies ITT Questions [E001] to [E010] and [I001] indicates that a response will give HS2 Ltd confidence if it is aligned with the Tenderer’s responses to the other ITT Questions in section E. However, responses to each ITT Question must be capable of being read on a stand-alone basis and Tenderers must not cross-refer between any ITT Questions to circumvent the stated maximum page limit for any ITT Question. HS2 Ltd will consider such cross-referenced material as ‘extraneous’ to the ITT Question and will not evaluate such cross-referenced material. 6.8.1 Assessors will award scores for the response to each ITT Question based wholly on the contents of the written responses to the ITT Questions, and any associated clarifications and responses from Tenderers made in accordance with the procedures specified in this ITT, including but not limited to clarification and/or validation at clarification meetings and presentations in accordance with Part 6.18 (Post-Tender clarification meetings and presentations).”
“HS2 Ltd will evaluate each ITT Question, including those in section E, as described in ITT Volume 0 Part 6.8, namely by reviewing the extent to which and how well the response answers the relevant ITT Question being evaluated. As described in Part 6.8, in evaluating a response to each ITT Question, HS2 Ltd will consider the extent to which and how well (a) the ITT Question has been answered; and (b) each factor in the accompanying Evaluation Guidance has been addressed and then HS2 Ltd will award a score based on the confidence level it has in the response as a whole taking into account the criteria and factors set out in the score descriptors in Table 6.8. In relation specifically to the last factor in the ITT Questions in section E concerning alignment, HS2 Ltd is keen to ensure that each response in section E is consistent to give HS2 Ltd confidence that the Tenderer has considered and proposed a holistic overall proposition. Accordingly, in addition to the two subject matter expert Assessors who will evaluate individual responses to ITT Questions, HS2 Ltd has also engaged a ‘technical lead’ whose role is to review all responses to section E to ensure responses align. To the extent a response to an ITT Question in section E is not consistent with the rest of the responses to the ITT Questions in section E, HS2 Ltd will in the first instance clarify any inconsistency or lack of alignment if appropriate in accordance with the provisions in ITT Volume 0 and theUtilities Contracts Regulations 2016 . If a clarification is not appropriate or does not resolve any inconsistency or lack of alignment, then HS2 Ltd may reflect a material lack of inconsistency [sic] in its score for that ITT Question in accordance with the relevant score descriptors depending on the extent of the inconsistency (for example, does it represent a minor concern or does it just reduce confidence from ‘Very good’ to ‘Good’).”
“6.8.7 The ‘Evaluation Guidance’ for each ITT Question contains a number of factors that represent “typical characteristics” expected of each response. The factors in the ‘Evaluation Guidance’ for each ITT Question are not separate sub-criteria and are not sub-weighted. Furthermore, the typical characteristics should not be interpreted as being placed in a decreasing (or increasing) order of significance. The typical characteristics are not exclusive but rather are intended to give additional guidance to Tenderers on the required content of each ITT Question and on the factors that HS2 Ltd will take into account when applying the scoring methodology set out in Table 6.8. 6.8.8 In arriving at a score for each ITT Question, HS2 Ltd will consider the response as a whole and apply the scoring methodology described in this Part 6.8 and in Table 6.8 above but will also take into account the factors described in the Evaluation Guidance in Appendix C and the strength of the evidence provided by Tenderers in their Tenders.”
“HS2 has received the following query: ITT paragraph 6.8.8 states, “In arriving at a score for each ITT Question, HS2 Ltd will consider the response as a whole and apply the scoring methodology described in this Part 6.8 and in Table 6.8 above but will also take into account the factors described in the Evaluation Guidance in Appendix C and the strength of the evidence provided by Tenderers in their Tenders.”
“In arriving at a score for each ITT Question, HS2 Ltd will consider the response to that ITT Question as a whole and apply the scoring methodology described in this Part 6.8 and in Table 6.8 above but will also take into account the factors described in the Evaluation Guidance in Appendix C and the strength of the evidence provided by Tenderers in the response to that ITT Question.”
“Tenderers shall note that due to the nature and complexity of the HS2 Programme, HS2 Ltd’s requirements may continue to evolve throughout this procurement. HS2 Ltd accordingly reserves the right to (i) delay any stage; (ii) change any time period or deadline; (iii) make other changes to the timetable and/or introduce new or additional stages into the procurement as it considers appropriate; (iv) revise the ITT documentation; (v) require revised submissions; and (vi) discuss issues with Tenderers as necessary (including with the top-ranked Tenderer(s) alone, provided the evolved requirements would not have impacted on evaluation). HS2 Ltd will inform Tenderers of any such changes.”
“Tenderers should note (and Tenderers shall submit their Tenders on this basis) that HS2 Ltd reserves the right to make changes to the scope of the services and works and thus to vary the scope of the Contract(s) (either by omission or expansion of scope or by movement of scope from one Lot to another) during the course of the procurement process and/or during the term of the Contract.”
“6.15.9 HS2 Ltd reserves the right to discuss the final Conditions of Contract and ancillary suite with the top-ranked Tenderer or Tenderers for each Lot only, but will not do so in a way which distorts competition or would have affected the outcome of the evaluation”
“HS2 Ltd may hold a series of post-Tender clarification meetings for the purposes of clarifying Technical Submissions and to conduct negotiations as described above but is not obliged to do so.”
“(b) In each contract year (or such other period as is set in WI 800 Commercial Management), the total amount payable in respect of the Construction Partner’s People will be capped at the GMMP. The GMMP will be based upon agreed Staff Rates and an agreed resource plan ... (c) The GMMP for the first year will be derived from the Tenderer’s Staff Rates provided at Tender within the Staff Rates Schedule in response to ITT Question [J001] and the resources included in the Management Resource Schedule Template provided in response to ITT Question [E001], as discussed and agreed prior to Contract award. Thereafter, the GMMP will be agreed annually utilising the resources included in the Management Resource Schedule Template as a basis for agreement, with the GMMP ultimately being determined by the Project Manager if not agreed. ...”
“3.20.3 HS2 Ltd recognises that the requirements of the Contract will change over the life of the Contract and similarly that the Construction Partner’s organisational structure and its management team will also need to change to reflect those changing requirements as the Contract and Works progress. Accordingly, the Tender response requirements and the Contract are designed to recognise that the organisation and management team will be amended and agreed on an annual basis and to allow the Construction Partner to focus on providing the right organisation and level of resources to successfully deliver the Contract. 3.20.4 At Tender stage, Tenderers are required to identify the level of resources they anticipate throughout the life of the Contract and these resource proposals will be evaluated as part of the Technical Submission (see ITT Question [E001] and further information at Part 5.8 below).” “5.8.2 a)….The completed Management Resource Schedule Template … is then intended (subject to any refinement during post-tender negotiations) to be the first accepted Management Resource Schedule.”
“6.14.3 HS2 Ltd reserves the right to reject any Tender which contains Qualifications which, from the point of view of HS2 Ltd, are commercially unacceptable because, without limitation, they contain positions which expose HS2 Ltd to significantly greater risk, do not represent value for money or distort the principles of equal treatment and fairness between Tenderers. Such a Tender may not be considered compliant and therefore may be rejected on that basis... .... 6.14.6 HS2 Ltd intends to remove any Qualifications submitted by first seeking withdrawal of the Qualification from Tenderers. For any Qualifications that remain, HS2 Ltd will determine for each such remaining Qualification: a) Whether the Qualification is significant enough to constitute an unacceptable Tender (see paragraph 6.14.3 above). If so, the Tenderer will be advised that if it does not withdraw (or modify to make compliant) the Qualification then the Tenderer will be disqualified as having submitted a non-compliant Tender; b) If not, then HS2 Ltd will determine whether the Qualification contains any real movement to the risk profile (i.e. a proposed change to wording that does not in HS2 Ltd’s opinion engender a material additional risk for which HS2 Ltd might, for example, require contingency) or any additional costs (e.g. administrative costs for HS2 Ltd); c) If there is a material risk which can be quantified and the Tender has not been rejected, an adjustment may be made by HS2 Ltd in relation to the Qualification in accordance with Part 6.13 above, after first notifying the Tenderer that such adjustment will be made.”
“6.16.1 As part of the evaluation of Tenders, the Commercial Submissions (and any other related aspect of the Tenders) will be reviewed to consider if any Tender appears to be abnormally low. For this purpose, an assessment will be undertaken by HS2 Ltd including (but not necessarily limited to) using a comparative analysis of the Commercial Submissions received from all Tenderers, drawing on the information included within the Tenderer’s Commercial Submission. 6.16.2 If, after this assessment and analysis, HS2 Ltd considers that a Tender appears to be abnormally low, then HS2 Ltd will require the relevant Tenderer(s) to explain the price or costs proposed in the Tender(s), including but not necessarily limited to an explanation of the matters listed in UCR 2016, reg. 84(2). 6.16.3 HS2 Ltd shall assess the information provided by the Tenderer(s) by consulting the Tenderer in accordance with UCR 2016, reg. 84(3). 6.16.4 If, after the written explanation, assessment and consulting, HS2 Ltd is of the opinion that a Tender is abnormally low, HS2 Ltd reserves the right in its absolute discretion to accept or reject the Tender.”
“In the first instance, Assessors will score the submissions independently. These will be deemed to be draft scores. Following this initial assessment and independent scoring process, a process of moderation will take place at which the individual Assessors for each ITT Question will meet with a Moderator to discuss their initial assessment, proposed scores and accompanying rationales and arrive at a final agreed score for each criterion, appropriately given in accordance with the Evaluation Methodology and the Tender.”
“Factor 5 [Mr Watson corrected this from factor 6, in his evidence on Day 2] required us to demonstrate "station specific activities where the Tenderer considers potential efficiencies or opportunities are available"; We identified seven key areas where efficiencies could be made whereas I note that BBVS' response is very brief (only four examples) and it set out no narrative on how potential efficiencies or opportunities would be developed.”
“Martyn - not sure if you saw HS2's message? we believe that one of our competitors has been asked in for a meeting. Here it is: ‘Further to our message of 24th July 18 'Negotiation', the IFT permitted HS2 Ltd to conduct face-to-face meetings if any post tender clarifications are required. HS2 Ltd does not require a face-to-face meeting with you in the period 24 August to 7 September. Hence, communications between you and HS2 Ltd will continue to be conducted through the Bravo e-sourcing portal.’ ”
“All, The following is proposed to the message received this morning from HS2. Any objections to this going tonight? with it being a bank holiday weekend, it could wait but we should certainly send before people come back to work on Tuesday. "Thank you for the message. Please confirm if your message of 23 August 18 is simply a clarification period during which you do not need any clarification from Bechtel and when there will be a separate negotiation meetings which we will be called to. As noted and offered during the procurement, we believe that a face-to-face meeting, with the appropriate attendees, is required to adequately understand HS2's intentions and to allow us to confirm our best value-for-money offer to ensure that HS2 achieves the right risk and reward outcome and avoids potentially significant unintended consequences. Previous meetings, and electronic communication, have not been sufficient to discuss and resolve these issues on a procurement of this complexity, magnitude, and importance where the team and corporate commitment to the confidence of outcome is as important to that conveyed in the written proposal. To date we have not been notified regarding any possible intent to moderate our tender score in any way or disqualify us with respect to the qualifications we have submitted. In accordance with clause 6.14 of ITT Volume 0, HS2 Ltd would be required to notify any tenderer before taking any such action. Could you please confirm that our tender score has not been moderated and we have not been disqualified. We look forward to a clarification of the status and to a mutually beneficial negotiation meeting.”
“I can't wait for them to reply!! I'm finding it hard to accept a scenario where we’re completely out! :( ”
“They haven’t read it yet. I just checked!”
“Q. And she says: "I can't wait for them to reply!! I'm finding it hard to accept a scenario where we are completely out!" You then reply: "They haven't read it yet. I have just checked!" I repeat: you were trying to dare HS2 to disqualify you, weren't you? What were all the exclamation marks about? A. So I can't talk about Nisrine's. We found it really quite difficult to get our head around why HS2 would refuse a discussion on this contract qualification, on what is a very significant and hugely complex project and hugely complex contract and execution. And we had spent two years bidding it. And we were constantly shocked that they would not accept that. So, you know, we were saying -- Nisrine's view was: I can't believe we are thrown out because of this, I can't believe they would have already made a decision to disqualify us. And I am checking have they read it. Q. Did you think it was funny, Mr McMonagle? Is that why you put exclamation mark in your reply? A. No, it was far from funny. It was highly frustrating. Q. You agreed with me earlier that your qualification changed the risk. You agreed with me earlier that your qualification and HS2's response were perfectly clear. It was entirely clear to you, wasn't it, Mr McMonagle, that HS2 was not going to accept this qualification? A. It could not have been entirely clear to me. We did not know what discussions were happening within HS2.”
“Maintaining an audit trail — ensure moderation and moderation assurance is fully documented and all score changes and reasons for changes are fully explained and justifiable Mitigate risk of successful procurement challenge - evaluation is the key risk area in terms of possible procurement challenge!”
“Apply published evaluation methodology and follow your declared process. Treat all Tenderers in a consistent manner. Keep written records of evaluation process. Keep full audit trail of changes in scores and reasons for changes. Rationale to include all the reasons for the score. Devote sufficient time and resources to the evaluation process to make the above possible.”
“Q. Did you follow up looking for more detail thereafter as to what those changes would be? A. I believe at the meeting we just sought verbal confirmation that they could meet the programmes. They confirmed they could; that they thought that the profile of the resources may change over that period, but the overall quantum wasn't expected to be much different, and they confirmed that their methodology would not change. It was just effectively moving working time and parallel working, etc. What was made clear, and I think it was Jon Wagstaff who reiterated it, is that HS2 might come back and ask them to do a submission, a detailed submission, but there was no requirement for it in the meeting. I think if you go to the previous document we were looking at, I think one of the items, it just says: "We may require you to put in a submission." I don't think we ever asked for that submission.”
“It is regrettable that you indicate no face-to-face meetings will be held with bidders before the scheduled award date. The Old Oak Common Station project is complex and is proposed to be delivered through an unconventional contracting structure and yet the project is critical to the success of HS2. In the circumstances, it would therefore be prudent for HS2 to meet with each of the bidders in order that bidders can better understand HS2’s intentions and HS2 can have a deeper understanding of the various approaches proposed by the bidders and allow for more informed decisionmaking. By engaging in meaningful dialogue with each of the bidders, HS2 would also go some ways to demonstrate that the evaluation of bids has been conducted on “a fair and equal basis” as committed to by HS2 in the ITT. We reiterate that we are committed to successfully delivering Old Oak Common Station for HS2. To enable this, we considered the whole project in detail, and in particular how we could help to deliver more scope for less cost. The qualifications, which were submitted with our tender on11th May 2018 , were developed to achieve this objective.”
“[63] InCase T-250/05 European Dynamics v Commission (at [89]), which concerned a procurement by the EU institutions conducted under the Financial Regulation, the Court stated as a general preliminary point that: “… it should be recalled that the Commission has broad discretion with regard to the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender, and that review by the Court must be limited to checking that the rules governing the procedure and statement of reasons are complied with, the facts are correct and there is no manifest error of assessment or misuse of powers … .”
“HS2 Ltd reserves the right to hold post-Tender clarification meetings and/or to require Tenderers to present their Tenders.”
“3.2.1 At the meeting HS2 Ltd requested clarification from BBVS on their resource levels and approach, including on Project and Contract Management, Commercial Management, Stakeholder and Consents Management, Engineering Management, Procurement Management, Estimating / Cost Planning and Logistics. A discussion was then held where BBVS provided further insight into their resource levels and approach. No further action required”
“[58] It follows that I accept the specific criticisms made by the Trusts in support of this submission…..viewed overall, I am satisfied that the notes do not provide a full, transparent, or fair summary of the discussions that led to the consensus scores sufficient to enable the Trusts to defend their rights or the Court to discharge its supervisory jurisdiction. First, there is evidence, which I accept, that other reasons (including some agreed reasons) were in play and are not reflected in the notes. Second, pervasively there is no or no sufficient account of the reasoning and reasons that led panel members to resolve their differences (if they did) so as to arrive at consensus scores.”
“110. In any event, it is evident that, at no point during the Review Panel and subsequent governance process [which post-dated the selection of BBVS as the winning bidder] did any suitably senior and accountable individual within the Defendant give appropriate consideration to whether the resourcing issues identified in relation to the Preferred Bidder were such as to warrant abandonment of the Procurement. The Defendant’s failure even to consider this option amounts to a breach of the principle of good administration, which has deprived the Claimant of a substantial chance of winning the Contract on re-tender.”
“126. In this case, the Claimant put forward a well-resourced bid and BBVS did not. However, the Defendant felt able to avoid difficult and time-consuming decisions that would ordinarily have needed to follow the receipt of BBVS’ under-resourced bid – in particular, decisions as to low scoring, potential disqualification and abandonment of the Procurement – on the basis of an internal view that in practice the problem of under resourcing from year 2 onwards could be resolved by negotiation once the contract was up and running. Whether or not resourcing concerns could in fact be resolved by post-tender negotiation is wholly irrelevant to the scoring of the bids and attendant consequence under the IFT; it is also irrelevant to the proper exercise of a discretion to abandon the process in accordance with the principle of good administration.”
“The principle of good administration is a well-established principle of EU law which imposes on public bodies to treat persons in a manner that is fair and impartial. It incorporates aspects that may overlap with the principle of transparency and the obligation not to commit manifest error in exercising public functions. It is established that it applies by virtue of the TFEU and Article 41 of the Charter of Fundamental Rights and Freedoms. Specifically it binds Member States and their entities when they act within the scope of EU law. HS2 is a public body which was at all material times acting within the scope of EU law (seeCase C-277/11 , MM v Minister for Justice, Equality and Law Reform and commentary in Peers et al). To the extent that reliance is placed upon that principle independent of other obligations, it was plainly bound by the principle of good administration.”
“In response to the Commission's argument that its Evaluation Committee was nevertheless under no obligation to seek clarification from the applicant, the Court holds that the power set out in section 19.5 of the Instructions to Tenderers must, notably in accordance with the Community law principle of good administration, be accompanied by an obligation to exercise that power in circumstances where clarification of a tender is clearly both practically possible and necessary (see, by analogy, Cases T-22/99 Rose v Commission [2000] ECR-SC I-A-27 and II-115, paragraph 56, T-182/99 Carvelis v Parliament [2001] ECR-SC I-A-13 and II-523, paragraphs 32 to 34; see also, more generally,Case T-231/97 New Europe Consulting and Brown v Commission[1999] ECR II-2403 , paragraph 42, and Article 41 of the Charter of fundamental rights of the European Union, OJ 2000 C 364, p. 1, proclaimed in Nice on7 December 2000 ). While the Commission's evaluation committees are not obliged to seek clarification in every case where a tender is ambiguously drafted, they have a duty to exercise a certain degree of care when considering the content of each tender. In cases where the terms of a tender itself and the surrounding circumstances known to the Commission indicate that the ambiguity probably has a simple explanation and is capable of being easily resolved, then, in principle, it is contrary to the requirements of good administration for an evaluation committee to reject the tender without exercising its power to seek clarification.”
“Public procurement derives from EU law.”
“The principle of equal treatment requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified. There is, however, a wide margin of discretion available to a contracting authority in designing and setting award criteria and the fact that some potential bidders will find it relatively more or less easy than it is for others to comply with those criteria does not establish or even necessarily provide evidence of a breach of the equal treatment principle. What is forbidden is unequal treatment that falls outside the margin of discretion that is open to a contracting authority or that is “arbitrary or excessive”.”
“The reasoning followed by the authority which adopted the measure must be disclosed in a clear and unequivocal fashion so as, on the one hand, 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.”
“As for a contracting authority’s obligation to state reasons, beyond the principle referred to in paragraph 71 above, it must be remembered that it is apparent from Article 113(2) of the Financial Regulation and Article 161 of the Implementing Rules that a contracting authority fulfils its obligation to state reasons if it confines itself first to informing unsuccessful tenderers immediately of the reasons for the rejection of their respective tenders and then subsequently, if expressly requested to do so, provides to all tenderers who have made an admissible tender the characteristics and relative advantages of the tender selected as well as the name of the successful tenderer, within a period of 15 days from the date on which a written request is received (see judgment of10 September 2008 , Evropaïki Dynamiki v Commission, T-465/04, not published, EU:T:2008:324, paragraph 47 and the case-law cited).”
“The principle of proportionality is also important, it is submitted, relevant [sic] for interpreting the directives in a balanced way to limit the procedural burdens for both contracting authorities and suppliers (which is relevant both for its own sake and to promote national and EU objectives by encouraging participation by the best tenderers), and to avoid imposing other unnecessary constraints on the discretion of national authorities to implement national procurement goals in accordance with their own circumstances. This aspect of the proportionality principle is reflected in the explicit provisions of the directive ... The issue of procedural burdens is relevant for all procedures but is particularly important in the context of competitive dialogue and negotiated procedures where procedural costs can be very high. Thus it is suggested, for example, that this principle justifies an approach to the concept of a complete tender in competitive dialogue which allows a reasonable degree of detail to be filled in after choosing the winner of the procedure: such an approach can provide adequately for transparency and equal treatment whilst at the same time avoiding unnecessary procedural costs which will not contribute to those goals but which could prejudice other national and EU interests.”
“ In clause 6.2, delete the existing wording and replace with the following: “6.2 If either of the conditions for the issue of the Consolidation Notice set out in clause 6.1 bullet points two and/or three, have not been satisfied by19 July 2019 (or such later date as the parties may agree to allow for further value engineering or design optimisation), then the Project Manager shall, within 30 days either: (1) Execute a deed of variation with the Contractor to amend the contract in order to implement changes to Clause X20 to replace those parts of Clause X20 which are linked with or depend upon the Incentive Target and the Programme Target, with such alternative KPI and incentive schemes as the parties may agree (which replacement incentive scheme will reflect the principle that 20% of the Fee which would otherwise have been allocated to the performance KPIs in Annexure 4 and the Moderated Annual Fee will instead be allocated to the replacement performance incentive scheme agreed); or (2) Terminate under R26 on 60 days’ written notice." Add a new clause 6.5 “6.5 Nothing in this contract shall: (1) impose any liability on the Contractor for a failure to verify that the Incentive Target and/or Programme Target are achievable; or (2) require that any document prepared or submitted by the Contractor shall state that the works can be designed and/or delivered within the Programme Target and/or Incentive Target. The Contractor’s sole liability for a failure to achieve the Incentive Target and/or Programme Target shall be limited to the performance KPI scheme set out in clause X20.”
“6.14.3 HS2 Ltd reserves the right to reject any Tender which contains Qualifications which, from the point of view of HS2 Ltd, are commercially unacceptable because, without limitation, they contain positions which expose HS2 Ltd to significantly greater risk, do not represent value for money or distort the principles of equal treatment and fairness between Tenderers. Such a Tender may not be considered compliant and therefore may be rejected on that basis.”
“6.14.6 HS2 Ltd intends to remove any Qualifications submitted by first seeking withdrawal of the Qualification from Tenderers. For any Qualifications that remain, HS2 Ltd will determine for each such remaining Qualification: a) Whether the Qualification is significant enough to constitute an unacceptable Tender ... If so, the Tenderer will be advised that if it does not withdraw (or modify to make compliant) the Qualification then the Tenderer will be disqualified as having submitted a non-compliant Tender [a “Withdrawal Ultimatum”]; b) If not, then HS2 Ltd will determine whether the Qualification contains any real movement to the risk profile … or any additional costs… ; c) If there is a material risk which can be quantified and the Tender has not been rejected, an adjustment may be made by HS2 Ltd in relation to the Qualification in accordance with Part 6.13 above, after first notifying the Tenderer that such adjustment will be made.”
“Explain how you will structure your organisation to manage and deliver this Contract. Provide organisation charts of how you will manage and assure delivery of the Works from the starting date to completion date and provide a completed Management Resource Plan in the form of Appendix C3.”
“The Claimant maintains that this score amounted to a manifest error of assessment by the Defendant as the documents do not record, and the witnesses have failed to provide, any relevant or cogent reason for why Mr Botelle moved away from his initial assessment of Major Concerns in respect of Factor 5.”
“The GMMP for the first year will be derived from the Tenderer’s Staff Rates provided at Tender within the Staff Rates Schedule in response to ITT Question [J001] and the resources included in the Management Resource Schedule Template provided in response to ITT Question [E001], as discussed and agreed prior to Contract award. Thereafter, the GMMP will be agreed annually utilising the resources included in the Management Resource Schedule Template as a basis for agreement, with the GMMP ultimately being determined by the Project Manager if not agreed.”
“Tenderers will note from Appendix C that HS2 Ltd expects ITT Questions [E001] to [E010] and [I001] to be answered in a manner that demonstrates a holistic approach to the Tenderer’s technical delivery proposals and the Evaluation Guidance in Appendix C that accompanies ITT Questions [E001] to [E010] and [I001] indicates that a response will give HS2 Ltd confidence if it is aligned with the Tenderer’s responses to the other ITT Questions in section E. However, responses to each ITT Question must be capable of being read on a stand-alone basis and Tenderers must not cross-refer between any ITT Questions to circumvent the stated maximum page limit for any ITT Question. HS2 Ltd will consider such cross-referenced material as ‘extraneous’ to the ITT Question and will not evaluate such cross-referenced material.”
“HS2 Ltd will evaluate each ITT Question, including those in section E, as described in ITT Volume 0 Part 6.8, namely by reviewing the extent to which and how well the response answers the relevant ITT Question being evaluated. As described in Part 6.8, in evaluating a response to each ITT Question, HS2 Ltd will consider the extent to which and how well (a) the ITT Question has been answered; and (b) each factor in the accompanying Evaluation Guidance has been addressed and then HS2 Ltd will award a score based on the confidence level it has in the response as a whole taking into account the criteria and factors set out in the score descriptors in Table 6.8. In relation specifically to the last factor in the ITT Questions in section E concerning alignment, HS2 Ltd is keen to ensure that each response in section E is consistent to give HS2 Ltd confidence that the Tenderer has considered and proposed a holistic overall proposition. Accordingly, in addition to the two subject matter expert Assessors who will evaluate individual responses to ITT Questions, HS2 Ltd has also engaged a ‘technical lead’ whose role is to review all responses to section E to ensure responses align. To the extent a response to an ITT Question in section E is not consistent with the rest of the responses to the ITT Questions in section E, HS2 Ltd will in the first instance clarify any inconsistency or lack of alignment if appropriate in accordance with the provisions in ITT Volume 0 and theUtilities Contracts Regulations 2016 . If a clarification is not appropriate or does not resolve any inconsistency or lack of alignment, then HS2 Ltd may reflect a material lack of inconsistency [sic] in its score for that ITT Question in accordance with the relevant score descriptors depending on the extent of the inconsistency (for example, does it represent a minor concern or does it just reduce confidence from ‘Very good’ to ‘Good’).”
“Given that the OOC Contract was for the provision of a management service (to be carried out by people), each and every one of BBVS’ proposals in response to Questions E002, E004-E010 and I001 relied expressly or implicitly on adequate resources in order to be practically achievable.”
“because one or more of the following applies: • The response generally addresses the ITT Question and the factors in the Evaluation Guidance in a satisfactory manner, although parts of the response lack significant detail and/or evidence. • The response gives greater confidence than ‘Minor concerns’ but is not sufficiently comprehensive to warrant ‘Good confidence’.” 376. This contrasts with the two bullet points for Good, which are: • The response addresses well the ITT Question and the factors in the Evaluation Guidance, although parts of the response lack detail and/or evidence. • The response gives greater confidence than ‘Moderate confidence’ but is not sufficiently comprehensive to warrant ‘Very good confidence’.” • The response generally addresses the ITT Question and the factors in the Evaluation Guidance in a satisfactory manner, although parts of the response lack significant detail and/or evidence. • The response gives greater confidence than ‘Minor concerns’ but is not sufficiently comprehensive to warrant ‘Good confidence’.” 376. This contrasts with the two bullet points for Good, which are: • The response addresses well the ITT Question and the factors in the Evaluation Guidance, although parts of the response lack detail and/or evidence. • The response gives greater confidence than ‘Moderate confidence’ but is not sufficiently comprehensive to warrant ‘Very good confidence’.”
“Q. In substance, the Bechtel answer is saying: here are the tools we will use and we will use those to meet the key dates. In substance, that is no real difference, is it, from the BBVS answer, which is to say: here is an approach we will take to meet the key dates? A. I disagree. The Bechtel response is not saying that. The Bechtel response is saying: this is how we can meet five key dates. It is not how we can meet all of the key dates.”
“Provide a Works Package Strategy (WPS) aligned to WI 120, describing your proposed approach to packaging and the requirements of delivery of the Works.”
“3.1 Packaging approach to optimize supply chain layers By blending the two approaches and considering the requirements of the geographical worksites and associated stakeholders and asset owners (i.e. OOC Lane, Western Structures, GWML Station, and HS2 Station), we have identified an optimised strategy comprising 15 service packages and 36 work packages. This solution delivers value for money and allows change and emerging scope to be managed.”
“[In relation to the assessment of another tenderer, neither Bechtel nor BBVS] Factor 6 (contracting strategy) — Good assessment seems marginal given the reference in moderation notes re ANL Bridge demolition being "without sufficient reference to foundation design/construction". Also — Minutes don't explain why Vincent withdrew his 1st criticism of page 11 which was that it didn't answer the question ("not asked in the ITT question"). Factor 7 — again the VGC looks marginal. The Minutes don't address why Vincent's comment that additional engagement evidence to add to market sounding would have resulted in VGC. … We find the overall moderated view of VGC rather unconvincing — and the Minutes are not strong enough to support it. Vincent's initial assessment seems stronger, the 5/3 split of VGC to G could change - see above and the comments overall seem to indicate areas where there was a lack of detail rather than the innovation/similar approach elsewhere/all factors being addressed very well indicators of VGC. [In relation to the assessment of Bechtel’s response] Overall, the score is probably defensible by reference to the scoring indicators and minutes. However, is the 'moderate' for supply chain engagement sufficiently significant overall to reduce the score from VGC to G? If a more holistic approach to BAM is being taken, wouldn't a holistic approach here suggest VGC rather than G (given 4 VGCs and 1 E). It seems odd that BAM get VGC and Bechtel get G — given the similar spread of scores. Please look again and confirm during re-moderation. Assessors (Vincent in particular) should look at the minutes to ensure that they capture fairly why he changed his view from Excellent (which admittedly is not sustainable given he scored various factors as VGC only) to Good. Also, did the assessors consider whether some factors eg no 1 — are more important than other factors on this question eg no 7 (market engagement)? Bechtel looked strong on no.s 1 to 3 for example. We don't have an objection to this provided it is justifiable in the circumstances.” [In relation to the assessment of Bechtel’s response] 409. (emphasis added) “One further point (having seen the stricter approach taken) to E006 EUS. We think the assessors on re-moderation should err on the side of being stricter with the scores eg re BAM and Bechtel.”
“Through consensus discussion and upon review of the response, David [Steward] agreed with Adrian [Hooper]'s view that there is in fact, a significant lack of detail in relation to the approach to maintenance testing and handover. On that basis, David's level of confidence for this factor was lowered from good to moderate and Adrian's confidence level remained at moderate. Both Assessors agreed that this factor was addressed satisfactorily.”
“Taking the response to the ITT Question as a whole, 4 of the factors were address (sic) well and 1 of the factors was addressed very well but the Assessors discussed and agreed that the significant lack of detail in parts of the response meant overall the response to this question provided a Moderate level of confidence.”
“(c) an organisation chart detailing roles, Staff and design and engineering accountabilities within the delivery organisation; (d) its process for identification, deployment and management of resources to meet the design programme.”
“Delivery within the Incentive Target and Programme Target is a key objective of HS2 Ltd. Provide your proposal to meeting this objective including describing the approach that you will apply and demonstrate how this will enable you to design and deliver within the Incentive Target and Programme Target as detailed within WI 800. Identify the steps that you will take and issues that you would address to enable the station to be designed and delivered within the Incentive Target and Programme Target.”
“5.1.1. The Contractor provides a Cost Plan to manage and control the costs throughout the life of the contract and provide assurance to the Project Manager that the works can be delivered within the Incentive Target” and “5.1.2 The Contractor develops and submits to the Project Manager for acceptance a Cost Plan within eight weeks of the issue of the Contractor’s final verification report on the SDSC estimated target cost for the works.”
“Provide an outline Procurement Plan that explains how the Tenderer will deliver the Work Package Strategy illustrated in ITT Question [E005], and how the Tenderer will manage the proposed supply chain for the relevant station.”
“(1) Utilities shall require economic operators to explain the price or costs proposed in the tender where tenders appear to be abnormally low in relation to the works, supplies or services. (2) The explanations given in accordance with paragraph (1) may in particular relate to— (a) the economics of the manufacturing process, of the services provided or of the construction method; (b) the technical solutions chosen or any exceptionally favourable conditions available to the tenderer for the supply of the products or services or for the execution of the work; (c) the originality of the work, supplies or services proposed by the tenderer; (d) compliance with the applicable obligations referred to in regulation 76(6); (e) compliance with obligations referred to in regulation 87; (f) the possibility of the tenderer obtaining State aid. (3) The utility shall assess the information provided by consulting the tenderer. (4) The utility may only reject the tender where the evidence supplied does not satisfactorily account for the low level of price or costs proposed, taking into account the elements referred to in paragraph (2)...”
“[98] It follows that Article 139(1) of the Implementing Rules [equivalent to regulation 84 UCR16] enshrines a fundamental requirement in the field of public procurement, which obliges a contracting authority to verify, after due hearing of the parties and having regard to its constituent elements, every tender appearing to be abnormally low before rejecting it. [99] Next, the Court notes that Article 97(2) of the Financial Regulation provides that contracts may be awarded by the automatic award procedure or by the best-valuefor-money procedure and that, as regards the latter form of procedure, Article 138(2) of the Implementing Rules states that the tender to be accepted is the one with the best price-quality ratio, taking into account criteria justified by the subject of the contract such as the price quoted, technical merit, aesthetic and functional characteristics, environmental characteristics, running costs, profitability, completion or delivery times, after-sales service and technical assistance. [100] The Court is accordingly of the view that, where the contract is awarded to the tender offering best value for money, the fundamental requirement referred to in paragraph 98 above applies not only to the price criterion under the tender evaluated but also to the other criteria referred to in Article 138(2) of the Implementing Rules, since those criteria allow an anomaly threshold to be determined beneath which a tender submitted in the tender procedure in question is suspected to be abnormally low, within the meaning of Article 139(1) of the Implementing Rules.”
“6.11.7 The lowest Rate Card Price will receive full marks (100) for the quantitative evaluation of this element of the Commercial Submission with higher Rate Card Prices having 1 point deducted for every 1% variance from the lowest Rate Card Price. The score will then be applied to the sub-criteria weighting (10%) to identify the weighted score for the Staff Rates element of the Commercial Evaluation.”
“The GMMP for the first year will be derived from the Tenderer’s Staff Rates provided at Tender within the Staff Rates Schedule in response to ITT Question [J001] and the resources included in the Management Resource Schedule Template provided in response to ITT Question [E001], as discussed and agreed prior to Contract award.”
“HS2 Ltd recognises that the requirements of the Contract will change over the life of the Contract and similarly that the Construction Partner’s organisational structure and its management team will also need to change to reflect those changing requirements as the Contract and Works progress. Accordingly, the Tender response requirements and the Contract are designed to recognise that the organisation and management team will be amended and agreed on an annual basis and to allow the Construction Partner to focus on providing the right organisation and level of resources to successfully deliver the Contract.”
“(1) In negotiated procedures with prior call for competition, any economic operator may submit a request to participate in response to a call for competition by providing the information for qualitative selection that is requested by the utility.”
“It can be seen that these six procedures now largely correspond to the procedures available under the 2014 Public Procurement Directive. However, a number of important differences exist between the regime of the latter and the utilities regime as regards the award procedures, with the procedures under the utilities rules generally being more flexible. The European Commission when introducing the original Utilities Directive 90/538 suggested that this greater flexibility was justified by the different nature of the entities and contracts involved.” “In practice, the negotiated procedure with prior call for competition will often be a sensible choice (and is frequently used in the UK). A flexible approach is often preferred by commercial organisations as a means of obtaining value for money and may similarly often be used by regulated entities in the utilities sectors for this reason, even for relatively simple procurements. This procedure may be chosen even if the entity decides to use a procedure that is based on a single tendering phase with limited provisions for discussions: a formal tendering stage can be incorporated into the negotiated procedure, but the choice of the negotiated procedure offers the utility more flexibility than the restricted or open procedures in setting the rules of the tendering process. A significant advantage of using a negotiated procedure rather than a restricted procedure is also that this avoids any potential problems arising from the uncertainty over precisely what is permitted in a restricted procedure—for example, in terms of scope for allowing economic operators to alter their tenders after submission.”
“The better view is that under the 2004 Public Sector Directive/Public Contracts Regulations 2006 it is not necessary for offers at the final stage to be complete before the contracting authority designates the preferred bidder in a negotiated procedure with a notice. Support for this interpretation is provided by the analogy of the procedure involving the use of design contests under the directive. …. That matters may be left open in final offers is also supported by the Commission’s Decision in Case N-264/2002, London Underground Public Private Partnership on state aid relating to the public-private partnerships (PPP) for the London Underground. This PPP involved a competition by London Underground, a public utility, to select three consortia to maintain and upgrade the London Underground infrastructure over 30 years. As part of the analysis the Commission considered whether London Underground had complied with the negotiated procedure under the Utilities Directive. One of the main issues was whether changes to the project and project terms could be made after selecting the preferred bidders. The Commission accepted that after submission of offers “further negotiations would continue” with the preferred bidder. These covered some important issues such as risk allocation, the timing and sequencing of the infrastructure work and the performance regime (concerning the award of bonuses or deduction of payments for failing to meet certain targets). These negotiations were undertaken for various reasons, including to improve affordability and to allow the results of experimental operation of parts of the project (through “shadow companies”) to be fed into the process. It seems that negotiations could potentially involve all aspects of the project, whether or not already subject to agreement in principle, including the terms offered by the bidder and the scope and nature of the project itself.”
“[44] It follows, in my view, that Ms Hannaford is not correct in her submission that her complaint of unequal treatment is made out in this case purely and simply by reference to the fact that on her case the sole or principal reason for the decision to abandon the procurement as against Ryhurst, namely the Grenfell connection, would not have been applied to any other tenderer in the same position, so that unless the decision can be shown by the Trust to have been objectively justified it would be in breach of the equal treatment principle. Instead it seems to me that the Trust has a margin of appreciation in such cases and, in accordance with the approach in Amey and Croce Arnica, in the context of abandonment decisions Ryhurst must go further and establish that the decision was manifestly erroneous or irrational or disproportionate or not objectively justified. I do not think that it matters much, if at all, which label is attached. It is sufficient to say that the onus of proof lies upon Ryhurst to establish that the decision was outside the range of reasonable decisions which the Trust, as a public authority having to balance a wide range of relevant factors and interests, could properly have arrived at in compliance with its fundamental EU procurement obligations.”