“1.1.1 This Rolling Stock Manufacture and Maintenance Services Invitation to Tender (ITT) relates to a procurement using the negotiated procedure with prior call for competition, pursuant to theUtilities Contracts Regulations 2016 … 1.1.2 HS2 Ltd intends to procure a fleet of Conventional Compatible Trains (hereinafter referred to as the Rolling Stock) on a ‘Design-Build-Maintain’ basis. 1.1.3 The procurement seeks to ensure that the Rolling Stock provides the best whole life value to the HS2 Programme, to taxpayers, to future HS2 Train Operators, and ultimately to the travelling customer. … 1.1.5 This ITT, the structure of which is set out below in Section 1.2, sets out the requirements of the Contracts, the Procurement timetable, instructions for submitting a compliant Tender, and the processes for tender evaluation, negotiation and contract award. 1.1.6 The successful Tenderer will be required simultaneously to enter into the following Contracts at Contract Award: a. Manufacture and Supply Agreement (‘MSA’) of a minimum fleet of 54 Units; and b. Train Services Agreement (‘TSA’) for a minimum period of 12 years with optional extensions over the life of the Rolling Stock.” a. Manufacture and Supply Agreement (‘MSA’) of a minimum fleet of 54 Units; and b. Train Services Agreement (‘TSA’) for a minimum period of 12 years with optional extensions over the life of the Rolling Stock.”
“Assessors will assess each Component, and record the degree to which each Component has been addressed using the following categories: a. Not addressed (no response received, or the response received is not in English, or the response received is irrelevant to the Component); b. Weak; c. Reasonable; d. Strong; or e. Not Applicable (Note: Stage 2.2 contains a limited number of questions which contain “If Applicable”
“(1) Utilities shall treat economic operators equally and without discrimination and shall act in a transparent and proportionate manner.”
“(1) Contracts and framework agreements may be modified without a new procurement procedure in accordance with these Regulations in any of the following cases— (a) where the modifications, irrespective of their monetary value, have been provided for in the initial procurement documents in clear, precise and unequivocal review clauses, which may include price revision clauses, or options, provided that such clauses— (i) state the scope and nature of possible modifications or options as well as the conditions under which they may be used; and (ii) do not provide for modifications or options that would alter the overall nature of the contract or the framework agreement; (b) for additional works, services or supplies by the original contractor, irrespective of their value, that have become necessary and were not included in the initial procurement where a change of contractor— (i) cannot be made for economic or technical reasons such as requirements of interchangeability or interoperability with existing equipment, software, services or installations procured under the initial procurement; and (ii) would cause significant inconvenience or substantial duplication of costs for the utility; (c) where both of the following conditions are fulfilled— (i) the need for modification has been brought about by circumstances which a diligent utility could not have foreseen; (ii) the modification does not alter the overall nature of the contract; (d) where a new contractor replaces the one to which the utility had initially awarded the contract as a consequence of— (i) an unequivocal review clause or option in conformity with sub-paragraph (a); or (ii) universal or partial succession into the position of the initial contractor, following corporate restructuring, including takeover, merger, acquisition or insolvency, of another economic operator that fulfils the criteria for qualitative selection initially established, provided that this does not entail other substantial modifications to the contract and is not aimed at circumventing the application of these Regulations; (e) where the modifications, irrespective of their value, are not substantial within the meaning of paragraph (7) … … (7) A modification of a contract or a framework agreement during its term shall be considered to be substantial within the meaning of paragraph (1)(e) where one or more of the following conditions is met— (a) the modification renders the contract or the framework agreement materially different in character from the one initially concluded; (b) the modification introduces conditions which, had they been part of the initial procurement procedure, would have— (i) allowed for the admission of other candidates than those initially selected; (ii) allowed for the acceptance of a tender other than that originally accepted; or (iii) attracted additional participants in the procurement procedure; (c) the modification changes the economic balance of the contract or the framework agreement in favour of the contractor in a manner which was not provided for in the initial contract or framework agreement; (d) the modification extends the scope of the contract or framework agreement considerably; (e) a new contractor replaces the one to which the utility had initially awarded the contract in cases other than those provided for in paragraph (1)(d). (8) A new procurement procedure in accordance with these Regulations shall be required for modifications of the provisions of a contract or a framework agreement during its term other than those provided for in this regulation.”
“(1) Utilities shall treat economic operators equally and without discrimination and shall act in a transparent and proportionate manner. (2) The design of the procurement shall not be made with the intention of excluding it from the scope of these Regulations or of artificially narrowing competition. (3) For that purpose, competition shall be considered to be artificially narrowed where the design of the procurement is made with the intention of unduly favouring or disadvantaging certain economic operators.”
“[26]… the duty to observe the principle of equal treatment lies at the very heart of the public procurement directives, which are intended in particular to promote the development of effective competition in the fields to which they apply and which lay down criteria for the award of contracts which are intended to ensure such competition. [27] Furthermore, it is settled case law that 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.”
“The duty of equal treatment requires that the contracting authority must treat both parties in the same way. Thus ‘comparable situations must not be treated differently’ and ‘different situations must not be treated in the same way unless such treatment is objectively justified’: see Fabricon v Belgium [2005] ECR1-01559 at paragraph 27. Thus the contracting authority must adopt the same approach to similar bids unless there is an objective justification for a difference in approach.”
“[41] … the principle of equal treatment implies an obligation of transparency in order to enable compliance with it to be verified … . [42] More specifically, this means that the award criteria must be formulated, in the contract documents or the contract notice, in such a way as to allow all reasonably well-informed and normally diligent tenderers to interpret them in the same way. [43] This obligation of transparency also means that the adjudicating authority must interpret the award criteria in the same way throughout the entire procedure … [44] Finally, when tenders are being assessed, the award criteria must be applied objectively and uniformly to all tenderers ...”
“The principles of equal treatment, non-discrimination and transparency require a contracting authority that has adopted a decision-making procedure for assessing bids to comply with it once it has begun to do so. A different way of expressing the same principle is to state that a contracting authority that has set rules for that procedure must follow them, applying those rules in the same way to the different bidders. Changing the decision-making procedure during the process of assessment risks arbitrariness and favouritism, a risk that it is the purpose of such requirements to avoid ...”
“[8]… [In the Mayo case] the Court explained what the legal principle of transparency meant in the context of invitations to tender for public contracts: the award criteria must be formulated in such a way as to allow all RWIND tenderers to interpret them in the same way. That requirement set a legal standard: the question was not whether it had been proved that all actual or potential tenderers had in fact interpreted the criteria in the same way, but whether the court considered that the criteria were sufficiently clear to permit of uniform interpretation by all RWIND tenderers. … [12]… the yardstick of the RWIND tenderer is an objective standard applied by the court. … [14] The rationale of the standard of the RWIND tenderer is thus to determine whether the invitation to tender is sufficiently clear to enable tenderers to interpret it in the same way, so ensuring equality of treatment. The application of the standard involves the making of a factual assessment by the national court, taking account of all the circumstances of the particular case. [27] … The court has to be able to put itself into the position of the RWIND tenderer, and evidence may be necessary for that purpose: for example, so as to understand any technical terms, and the context in which the document has to be construed. But the question cannot be determined by evidence, as it depends on the application of a legal test, rather than being a purely empirical enquiry. Although, as counsel for the appellants emphasised, the question is not one of contractual interpretation – the issue is not what the invitation to tender meant, but whether its meaning would be clear to any RWIND tenderer – it is equally suitable for objective determination.”
“When referring to a ‘manifest’ error, the word ‘manifest’ does not require any exaggerated description of obviousness. A case of ‘manifest error’ is a case where an error has clearly been made.”
“… the Court should always resist the temptation simply to substitute its view for that of a contracting authority and should only intervene where sufficiently material breaches of obligation are shown… There is, however, no judicial remedy for subjective dissatisfaction at losing a procurement competition.”
“Provide calculations and/or comparisons between the Train Proposal and existing designs to demonstrate that the HS2 contact quality requirements (TTS-401 and standards), will be complied with by the pantograph(s) on the Unit when operating on the HS2 Network as defined in TTS-401.”
“The dynamic contact forces will be controlled and managed using aerodynamic augmentation and pressure regulation. The contact quality will be assessed in accordance with the requirements of the ENE TSI and LOC & PAS TSI, relevant NNTRs and any referenced normative standards. The HS2 pantograph contact quality has been assessed using modelling, simulation, wind tunnel testing … and tether testing on HS1 infrastructure … and found to be within limits set by the ENE TSI and LOC & PAS TSI, and relevant at 360km/h.”
“For the 'in-service' energy consumption figures entered into the Energy Assessment Tool, describe how the figures were calculated and provide assurance for the validity of the analysis methodology that was used.”
“Assessor 1 … noted elements of the Tenderer’s modelling tool were new developments and there was insufficient benchmarking against existing tools. The Assessors discussed this further, by reviewing the Tenderer’s submission and discussing section 1.38. Assessor 2 pointed out section 1.37 of the Tenderer’s submission. This was discussed by all Assessors and they all agreed it showed assurance of the new post processing elements of the model. The Assessors agreed the information provided by this section gave them sufficient confidence regarding the assurance for the validity of the analysis methodology. On this basis, Assessors 1 and 3 agreed to a consensus score of Strong.”
“With reference to the Train Proposal, show the degree to which the design of the unit complies with requirements for vertical step-to-platform alignment (TTS-153, TTS-154 and TTS-151). Explain the design features that contribute to achievement of these requirements and feasibility of these features. Your response should include a calculation that justifies the range of vertical offset for normal and abnormal states (TTS-153, TTS-154).”
“The Tenderer has provided evidence that gives confidence that their proposal will comply with TTS-153, Mandatory. There is a lack of rationale regarding the combinations of ‘worst case’ parameters leading to the Tenderer’s statement of compliance to TTS-154, Preferred. For example, the application of the DMEP condition in combination with exceptional uncompensated radial wheel wear would appear to exceed the Preferred level of compliance to TTS-154 and the omission of this scenario is not explained. The Tenderer has provided evidence that gives confidence that their proposal will comply with TTS-151.”
“With reference to the Train Proposal, show the degree to which the design of the Unit complies with requirements for horizontal step-to-platform alignment (TTS-156, TTS-151). Explain the design features that contribute to achievement of these requirements and the feasibility of these features.”
“During the Moderation the Assessors reviewed the Tenderer’s submission, including their Train Proposal, to establish the degree to which the design of the Unit complies with requirements for horizontal step-to-platform alignment. Additionally, the Assessors reviewed Tenderer’s explanation / feasibility study of the design features which contribute to achievement of the requirements of the TTS (including supporting drawings), noting that the tender declared that their proposal is ‘Compliant’ with the ‘Mandatory’ requirements of TTS-151 and TTS-156. The Tenderer’s submission lacked sufficient proof of concept technical information to provide confidence of the feasibility of the moving step design proposed for HS2 Network (TTS-156), e.g. neither their 2.2.21 response, or their Train Proposal, provided a detailed technical description, or referenced case studies that demonstrated where similar solutions have been delivered. On this basis, Assessors One and Three agreed with Assessor Two that a consensus score of Reasonable was more appropriate than Strong.”
“The Tenderer has provided evidence that their proposal will comply with TTS-156. The Tenderer has provided evidence that their proposal will comply with TTS-151. However, the Tenderer has not clearly demonstrated the feasibility of their proposal, e.g. evidence of where a similar solution has been implemented on other projects. A more comprehensive technical description of the proposed system would have given more confidence as to the deliverability of the Moveable Step system.”
“With reference to the Train Proposal, show the degree to which the design of the Unit complies with the step and door threshold requirements (TTS-1949, TTS-158, TTS-2705, TTS-264 …). Explain the design features that contribute to achievement of these requirements and the feasibility of these features.”
“During the Moderation the Assessors reviewed the Tenderer’s submission to establish the degree to which the design of their Unit complies with step and door threshold requirements. … The Assessors agreed that there was a lack of clarity regarding the level of compliance to TTS-158 and therefore the applicability of TTS-2705 in the Tenderer’s response in some cases at curved HS2 platforms. On this basis, Assessor Three agreed to change their score from Strong to Reasonable. In consideration of the above, the Assessors agreed that score of Reasonable was appropriate ...”
“…The Tenderer has provided evidence that their proposal will comply with TTS-1949. The Tenderer states that their proposal is compliant to TTS-158, Preferred 1 (<20mm). However, in the drawings provided as part of this submission, the Tenderer shows the Moveable Step being partially deployed at some platform locations… Therefore, at certain curved HS2 platforms, the V2 gap would seem to be larger than 20mm and therefore the stated level of compliance would not be achieved. At CRN platforms the Tenderer shows in figure 3.5 of the Train Proposal that the moveable step will be deployed to …, which is less than … apparently required to achieve a V2 dimension of 20mm. However, the “Rationale” text to TTS-159 states that “HS2’s proposal is that the preferred condition is for the step to fully deploy and oversail CRN platforms” and so it is accepted that the CRN case does not constitute a non-compliance. In the TTS Response Spreadsheet, the Tenderer states that TTS-2705 is Not Applicable. In the HS2 platform case where the Moveable Step is deployed to a distance of less than … (as identified above) the V2 dimension appears to exceed 20mm, in which case TTS-2705 would be applicable to this Tenderer’s design. This issue is not addressed; therefore, compliance cannot be definitively determined. The Tenderer has provided evidence that their proposal will comply with TTS-264. A score of Reasonable is attributed taking into account the uncertainty in relation to achieving the stated level of compliance to TTS-158 and therefore the applicability of TTS-2705.”
“4.1 The following conclusions were drawn from the test scenarios attempted, noting that these were undertaken by a wide cross-section of users but with relatively small user group sizes. 4.2 A train-mounted Moveable Step creates a boarding issue for wheeled mobility aids when its depth causes both front and rear wheels of the device to engage both vertical rises at the same time. 4.3 A train-mounted Moveable Step creates a trough when the plate is too far below the level of the platform. This may generate boarding and/or alighting issues, depending on the vertical heights, V1 and V2. 4.4 The greatest and most reliable independent boarding and alighting success is achieved with minimal vertical dimensions at V1 and V2. 4.5 An infill ramp at the V2 position increases boarding success, especially for unpowered wheeled mobility aids; it also generally improves comfort, both boarding and alighting for all wheeled mobility aid users – a long, shallow infill is preferred. 4.6 An infill ramp at the V2 position reduces the flat part of Moveable Step and this presents an increased challenge for PRMs that do not use a wheeled mobility aid – a short infill ramp is preferred. 4.7 An infill ramp that covers the entire boarding plate (i.e. the infill ramp and the plate are one and the same) provides significant improvement in boarding and alighting success (subject to an acceptable V1 dimension and infill ramp gradient). 4.8 A tapered PTI (i.e. where V1 and V2 are not parallel or very close to parallel) produces a marked decrease in boarding and alighting performance for wheeled mobility aid users. 4.9 A tapered PTI creates a negative qualitative reaction from wheeled mobility aid users – both before and after experiencing it – such an interface would also require further testing with user groups especially those that have not been included in HS2’s testing to date. 4.10 It should be noted that these results were created with relatively small user groups in a ‘sterile’ lab environment and that broadening to a wider user population, coupled with introducing ‘real world’ effects such as the presence of other passengers, the actual station environment, weather conditions and dwell time pressures are all likely to impact on the results recorded to date.”
“C1) Provide a description of how TTS-2635 and TTS-1963 have been understood and interpreted and how this has influenced the design to facilitate efficient movement of passengers of all abilities on to or off of the Units at both HS2 and CRN platforms while minimising hazards. C2) Describe how the findings of HS2-HS2-RR-REP-000-000052 P01 have been considered and addressed in the development of the PTI arrangement. Where any of the findings have not been addressed, explain why it is not considered practicable.”
“While meeting the TSI and TTS requirements appropriate to the PTI design, the following changes and design concepts have been identified to enable the widest range of users under varying circumstances to board/disembark confidently and enable necessary passenger flow to meet dwell-time expectations over the Unit design life: …”
“The Tenderer has provided strong evidence that they have understood and embraced the spirit of the design challenge. Strong evidence has been provided that the Tenderer made full and thorough use of the Double Diamond approach to design thinking, and conducted a full assessment of the PTI using this method. The Tenderer and their design and human factors teams have also been supported by specialist consultants to develop an exhaustive design thinking, human factors and scientific approach. The Tenderer has provided evidence that they have employed physical mock ups of their proposed PTI vestibule solution at the HS2 platform. This has been tested with a wide demographic of both able bodied passengers and passengers of reduced mobility. The Tenderer has employed mathematical models and specialist equipment to analyse the likely ability of their design to enable a wide demographic of users to independently board and alight the train. This is strong evidence of the Tenderer's ability to understand and interpret the requirements of TTS-2635. The Tenderer makes some reference to the impact of the PTI design on dwell time, having measured the time it takes for wheelchair users to board/alight the Unit with different movable step designs at HS2 stations but not at CRN platforms. During the design process, user trials were undertaken with a wide range of participants to demonstrate their understanding of TTS-1963. It is understood that the boarding/disembarking times were recorded for the different users (including wheelchair participants) to navigate different step configurations to identify the impact on dwell times. A number of design changes were identified to enable the widest range of users under varying circumstances to board/disembark confidently and enable necessary passenger flow to meet dwell-time expectations over the unit life.”
“The Tenderer has provided strong evidence that they have considered and complied with the requirements derived from the findings of HS2-HS2-RR-REP-000-000052 with care and have been considered throughout their design process. The Tenderer provides a comprehensive commentary to explain where the inherent differences in their train design led to findings that differed from those found in the HS2 report (notably in … the tendered design compared to the HS2 tests). The Tenderer conducted their own trials, with some differing results to those found in HS2-HS2-RR-SPE-000-000052, but the findings seem reasonable and have been applied logically to the design. The Tenderer has carried out user testing on their proposed design using their physical mock-up with a representative sample user group. Further, they have identified pinch points and areas subject to high levels of wear and tear. This demonstrates the Tenderer's good understanding of how best to optimise the movement of a customer from the platform into the saloon.”
“the time taken for a Unit to perform all normal aspects of station operations from wheels-stop to wheels-start including alighting and boarding of passengers.”
“The Unit shall deliver 95% confidence of achieving a Dwell Time of 2 minutes at intermediate stations, calculated in accordance with the Static Dwell Time Model in Appendix I using the 1SL. Rationale: Achievement of a two-minute Dwell Time is key to achievement of HS2 railway capacity and journey times. The Static Dwell Time Model evaluates the key architectural elements of the interior layout that impact the Passenger exchange part of the Dwell Time.”
“Provide assurance that the maximum time for the operational component of dwell time is feasible. Your response should reference the key elements of the Train Proposal that contribute to achievement of the dwell time requirement.”
“Feasibility - evidence that your Train Proposal is feasible and can realistically be developed during the timescales of the project. Your response should give confidence of feasibility by explaining where components and designs have previously been used or, for new designs, explaining the design development activities.”
“The Tenderer supports the value entered into the static dwell time model with a breakdown of the Operational Component supported by text and illustrations. The Tenderer states that the derivation of the Operational Component time is based on supplier experience and knowledge of product performance from both testing and service validation. Operating times have been provided by the door system supplier. The breakdown of the opening and closing sequences is clear.”
“In the case of the moveable step or bridging plate extending beyond that permitted by the gauging rules, the train shall be immobilised whilst the step or plate is extended.”
“including any processing time and warning alarms”
“So I tried to run the dwell calculator based on the drawings and the Tenderer needs an operational time of … to comply. That’s pretty optimistic for step in and out and door open/close …”
“Hmmm. Doesn't sound good. But sounds like it comes down to the stage 2.2 eval proper as the next step? They are not obviously NC.”
“Provide assurance for the validity of the noise modelling that has been used for part C1, including the applicability for speeds up to 360km/h.”
“Following a lengthy discussion around the application of a pragmatic approach to validation of the tenderer's analysis, all the Assessors liked the approach with testing and modelling, but felt the results were expressed poorly. On reflection of these poorly expressed results Assessor 3 moved their position to Reasonable. Assessors 1 and 2 also agreed that the elements of their concern was addressed in the tenderer's submission but poorly expressed and agreed to a consensus position of Reasonable.”
“The analysis within C1 is based upon modelling rolling noise and wind tunnel testing to derive aerodynamic noise. C2 seeks to assure both of these elements. Rolling noise - It is accepted that the model has been successfully validated (first sentence in p 2.1) but the remaining text in p 2.1 and 2.2, and tables 3 and 4 do not clearly provide validation of the modelling in C1. Aerodynamic noise model - This validation has taken two approaches. The first is by reference to published research which produced a formula to be applied to the result of small scale wind tunnel testing in order to determine noise effects of a real scale (1/1) model. The second approach aims to validate the noise measurements of the HS2 pantograph in a wind tunnel at 360 km/h against a prediction derived from the results of on train testing of the same pantograph type … The approaches to validation of both rolling and aerodynamic noise are not expressed clearly in the Tenderer's response e.g. the use of equation within p2.3 in C1 has been inferred but is not detailed. However, there is merit in an approach which includes wind tunnel testing to derive aerodynamic noise performance. Overall, it is considered that the tenderer has applied a pragmatic approach to validation of its analysis but poor explanation has reduced confidence. Hence a reasonable score has been awarded.”
“With reference to the relevant parts of the Train Proposal, explain the feasibility of the reliability levels required for key systems of the Unit.”
“The Tenderer identifies and provides rationale for a number of key systems. The reliability targets have been derived from an existing, similar product, and where reliability issues have been identified, suitable solutions have been implemented, including improved design and maintenance procedure revisions. A testing strategy for other systems is also proposed. The Assessors noted discrepancies between the key systems identified in C3 and the Tenderer's own identification of systems contributing to reliability achievement in C1 & C2, and also the significant challenges required to achieve the necessary reliability improvements for certain key systems stated in C3.”
“If the Train Captain presses the 'ATO Stop' control, the ATO On-board shall automatically stop the Train at the next Safe Location at which the Train can stop at full service brake deceleration.”
“Provide a description of how the On-board CCS complies with the ATO Stop function (TTS-2356).”
“Assessors 1 and 2 noted the Tenderer provided a high level response with no clear or preferred solution. The Tenderers submission was reviewed again and discussed and it was agreed by all Assessors that whilst the Tenderer provided some elements of solutions, the Tenderer did not actually provide a specific solution to the ATO Stop function other than the need to collaborate with HS2 and UNISIG.”
“This component is weakly addressed. The Tenderer has provided some basic explanation of how ATO Stop could be achieved, but does not have a clear solution. The response is centred around the need to collaborate with HS2 and UNISIG to find an appropriate solution, rather than explaining a technical solution that the Tenderer proposes to take forward.”
“If applicable: If compliant with TTS-1627, describe how during coupling forces will be managed to enable Passengers to continue to board.”
“The Tenderer has not justified that passengers can board whilst coupling operations are undertaken. The tenderer has noted that coupling will take place at 2 to 3kph, and that this will limit the acceleration and jerk imposed on passengers. However they have not demonstrated that these levels are sufficiently low to allow passenger boarding to be unimpeded; indeed the tenderer notes that further testing and possibly operational mitigations will be required to understand if it is acceptable. Furthermore, there are no examples offered of similar solutions by the tenderer which validate their opinion that boarding during coupling is a practical venture. The tenderer has described their technical solution, but this alone does not demonstrate compliance to the stated requirements.”
“The Tenderer has described the energy absorbing elements of the coupler design within the Train Proposal. This shows the components and defines the movement that can occur during coupling, but does not give other data such as stiffness or damping. The Tenderer has not provided any explanation or analysis how this design results in acceptable jerk and acceleration limits. With no analysis, there is no methodology to be assessed.”
“The Tenderer shall provide a Project Management plan, which shall … explain how the Tenderer intends to mobilise and resource its project delivery team, including a timeline of start-up activities, an organisational structure for the TMM’s project and engineering team(s) and an explanation of how that structure will be resourced within 12 months of the Commencement Date.”
“The Tenderer provides details of the project organisation structure detailing a project delivery team, also noting Project Management and Engineering Management Offices. The Tenderer describes a Project Launch Process including start up activities and a detailed timeline for mobilisation. Mobilisation of the core team and extended team is anticipated to be completed within the 60 – 90 day time frame from the Commencement Date. The Tenderer notes a plan to redeploy resources coming free from other projects to HS2 which will ensure the Tenderer has sufficient capacity.”
“The Tenderer shall provide a Project Management plan, which shall … explain how the Tenderer’s project management function will manage the interfaces between the entities referred to in C2 and C3 through a management organisation chart and supporting explanation.”
“In answering this Component, the Tenderer has provided a detailed management organisation chart. Whilst the response provides details of the team members and roles, there is insufficient explanation of the tools and processes for interface management that will be used to justify a higher score.”
“The Tenderer shall provide a Project Programme plan, which shall: … include a programme for the Works and MSA Services up to and including Fleet Acceptance which: • contains Contract Programme Dates for all of the Programme References, as defined in MSA Schedule 3, Part A; • does not rely on the Purchaser delivering to the TMM in advance of the Purchaser Earliest Give to TMM Dates, as defined in MSA Schedule 3, Part A; • delivers the Purchaser Latest Get from TMM Dates, as defined in MSA Schedule 3, Part A; and • complies with MSA Schedule 8 (Project Programme) in respect to the requirements of paragraphs 7.2 and 7.3 and covers substantially the requirements of paragraphs 7.6 and 7.9.”
“The Tenderer has provided a programme including key dates defined in the MSA 3 part A. The Tenderer has satisfied all requirements of this Component and a Strong score has been allocated.”
“The Tenderer shall provide a Customer Experience Collaborative Design plan, which shall: … include an indicative programme showing dates, durations and key dependencies for the activities identified in response to items C1 to C4 above along with a justification for how this programme allows for sufficient time to achieve the required outcomes. Note: a simple block-diagram form of programme or similar, along with appropriate narrative and references to milestones in the Project Programme (submitted in response to DP1.2), would be sufficient to address this Component.”
“The Tenderer has provided a Reasonable response to this Component. The Tenderer has provided detailed descriptions and project plans for the Collaborative Design Framework and Collaborative Design Delivery. The submission clearly contains insights and experiences from previous projects and is focussed on establishing the CDT quickly, which the Tenderer states will maximise the opportunity for design without impacting engineering or delivery schedules. However, the Tenderer's programme appears to show a relatively compressed design schedule with no lead in time from project commencement to the beginning of the Discover phase. The Discover, Define and Develop phases of the Double Diamond are completed in less than one year. The brevity of this lead in time and the compressed timescale to complete the first three phases of the Double Diamond raises concern that a robust and holistic interior design development process may not be achievable.”
“The Tenderer shall provide an Operational Functionality plan, which shall: … include an indicative programme showing dates, durations and key dependencies for the activities identified in response to items C1 to C5 above along with a justification for how this programme allows for sufficient time to achieve the required outcomes.”
“Assessor Three discussed how the Tenderer could have shown testing activities more clearly but accepted that dates were provided for them. The Assessors discussed the activities shown and their alignment in response to items Cl to C5. Assessor One discussed that level of detail provided in the Tenderers response was sufficient, as it detailed dates, durations and key dependencies for the activities identified in response to items Cl to C5 but was concerned that the durations shown are insufficient. All Assessors continued to discuss the Tenderer's submission and agreed a score of Reasonable. Assessor One changed their score from Strong to Reasonable as on reflection the Tenderer had not provided sufficient narrative to justify the duration shown for certain activities in the programme. Assessor Three changed their score from Weak to Reasonable as they hadn't accounted for the dates shown on the Tenderers programme.”
“This component was reasonably answered by the Tenderer. The Tenderer provides a detailed programme showing the activities for developing Operational Functionality. The activities shown, and their alignment with components C1-C5 could be clearer. The durations given in the programme appear quite short and there is limited justification for why the times given are sufficient. The Tenderer provides some explanation for how delays can be mitigated.”
“Explain how the Tenderer will work with the Notified Body / Designated Body to achieve Intermediate Statements of Verification and Certificates of Verification to support testing, trial running and authorisation of the Unit.”
“Assessor One changed their score from Weak to Reasonable after considering the positive aspects of their response identified by the other assessors, inc. the use of DOORS for requirements capture/management, and the use of a combined NoBo/DeBo for assessment (reducing the number of interfaces). Assessor Two changed their score from Strong to Reasonable after acknowledging that the Tenderer could have provided more detail on the assessment process and engagement with the NoBo/DeBo. All Assessors agreed a consensus score of Reasonable.”
“The Tenderer includes a summary of the overall regulatory framework under R(I)R, which is correct, but wider than the subject of this question … The Tenderer's response could have been more focused around the specifics of the question. The Tenderer identifies the benefits of early NoBo / DeBo engagement and sets out their plan of when they will appoint the NoBo / DeBo, appointing a single company ... The Tenderer provides a diagram that shows phases of testing and the level of V&V that will be complete to support ISVs and CoV s ... The Tenderer explains how they will use DOORS to capture requirements and V&V evidence … The Tenderer explains which teams will undertake the approvals work and highlights the experience of this team … The Tenderer could have provided significantly more detail about the processes that they will use to work with the NoBo / DeBo (and specifically which assessment modules they will use). In particular the Tenderer could have provided more detail about how they will undertake manufacturing assessment (module SD or via SH1). The Tenderer could have provided more information on how they work with and manage the NoBo / DeBo.”
“Explain how the Tenderer will undertake a risk assessment and how the Assessment Body will be engaged in this process.”
“Assessor Three changed their score from Weak to Reasonable that [sic] there was sufficient breadth of risk assessment process covered, including how the Tenderer will work with the AsBo and with WCP and other stakeholders. There was enough breadth to overcome the lack of detail in some areas.”
“The Tenderer explains how a risk assessment compliant with CSM-REA would be undertaken, and how an AsBo would be appointed 4 months after NTP to enable early agreement on specific methods and processes. The AsBo would review the risk assessment framework. Workshops would be arranged with the stakeholders to identify hazards develop the required safety requirements. The Tenderer could have provided more detail in their response and more substantial supporting information, such as the specific Safety activities and a simple timeline of the project linking the Safety activities to the various project stages. The Tenderer also states it will build on existing experience from other projects; this can be expected to assist in developing a complete set of hazards and acceptable close-outs. The Tenderer could have provided some information on their internal organisation to deliver this scope of work.”
“The Tenderer shall provide a Maintenance Technical Plan, which shall: … demonstrate that the Tenderer can meet the Train Plan Parameters, including during periods of planned overhauls.”
“Overall the response is assessed as Reasonable. The Tenderer's Maintenance Plan approach is based upon minimising maintenance interventions and the automated management of interventions. This limits the number of planned maintenance stoppages, which subsequently provides capacity for unplanned maintenance and resilience to perturbation. A flexible approach to night and weekend working is provided. Despite the solid approach, the Tender lacked sufficient evidence demonstrating compliance with the Train Plan Parameters during periods of planned overhauls.”
“Describe how the Tenderer will elicit the required information about the CRN and undertake a compatibility assessment of the Unit for its operation on the CRN, leading to a Network Rail Summary of Compatibility.”
“Assessor One changed their score from Weak to Reasonable after taking into account where the other assessors had identified positive aspects of the Tenderer's response, including their use of previous compatibility knowledge to feed into the assessment for operation on CRN, and the staged incremental increase in the compatibility assessment as the project progressed.”
“The Tenderer identifies the applicable standard (RIS-8270-RST) and the key outputs of this standard … The Tenderer could have provided a clearer list of deliverables leading up to these deliverables (e.g. for testing or intermediate stages). The Tenderer explains that they will use a generic ICD and populate this based on standards and the 'Ellipse' system. The Tenderer could have included more information about gauging data or other data sources that may be outside the Ellipse system. The Tenderer could have provided more information on the technical areas that compatibility assessment will focus on. The Tenderer identifies the importance of their relationship with Network Rail via the NR Project Sponsor, and highlights an understanding of the difficulties with undertaking compatibility assessment … The Tenderer explains that they will progressively demonstrate compatibility via compliance to standards and evidence from design simulation and/or testing. This, however, does not recognise that in some cases, compliance to a standard in itself may not ensure adequate compatibility. They then explain how this information will form the Compatibility File.”
“The Tenderer shall provide a Noise plan, which shall: … identify and justify where research and development [‘R&D’] will be undertaken to ensure requirements are met, describing the specific activities, such as prototyping and trials, that will be used to develop the design.”
“The Tenderer has provided evidence explaining areas for R&D and the activities that will be undertaken to develop those aspects of the Unit design. However, the Tenderer's identification of R&D topics covers exterior noise but omits justification why consideration of other R&D areas such as interior noise has not been included. Identify and justify R&D to meet requirements Two areas for R&D are identified based on their relative contribution to overall train noise, which are High Level Noise and Bogie & Running Gear. No further R&D topics have been identified. Describe activities to inform design (prototyping and trials) R&D activities for the two areas identified is evidenced that builds upon the work already undertaken. Prototyping and wind tunnel validation is evidenced along with full pass-by noise testing being undertaken on the 'Pre-Series / Systems Integration Test Units'.”
“with reference to C1, set out the organisational structure for its TSA maintenance delivery organisation identifying the responsibilities and number of staff by role and justify why it is sufficient to deliver the planned and unplanned maintenance workload.”
“This component was reasonably answered by the Tenderer. The Tenderer provides a robust explanation of its organisation design process including organisation chart, roles and responsibilities. The number of staff for certain roles is discussed however the justification for the numbers could have been more detailed. An understanding of headcount per role over time based on annual workloads could also have been provided. A reasonable level of confidence is provided in the Tenderer's response to this Component.”
“The Tenderer shall provide a Contract Mobilisation plan, which shall: explain, through both a description and programme, the mobilisation activities between Contract Award and the commencement of full service operation to enable the Tenderer to perform the Services and other obligations under the TSA.”
“Assessor One agreed to change their score from Strong to Reasonable because up to reflection the detail provided for some of the mobilisation activities was limited. Assessor Two agreed to change their score from Weak to Reasonable because, given the word limit imposed on the Tenderer, there is limited opportunity to provide further detail regarding all mobilisation activities. Assessor Three agreed to change their score from Strong to Reasonable because the description of some of the mobilisation activities identified is limited.”
“The Component was Reasonably answered by the Tenderer. The response to this component provides a high level programme which provides a limited description of the mobilisation activities. The supplementary description of the mobilisation activities is closely aligned to the programme but lacks alignment with the services in the TSA. The case study provides evidence of the tenderer's approach to document management but limited evidence is provided regarding other activities the tenderer will undertake to perform the services and obligations stated in the TSA. The Tenderer could have provided further description for the mobilisation activities between Contract Award and commencement of full service operation. A Reasonable level of confidence is provided in the Tenderer's response to this Component.”
“drawing on C2 and C3, explain how it would continuously refine the Maintenance Plan based on in-service experience and fleet performance.”
“The component was reasonably answered by the Tenderer. The Tenderer has outlined the process for the continuous refinement of the Maintenance Plan, including in-service and in-service reporting and case studies from other projects are provided. The Tenderer could have provided more information regarding how the engineering and safety process is utilised in the refinement of the Maintenance Plan. A reasonable level of confidence is provided in the Tenderer's response to this Component.”
“The Tenderer shall provide a Depot Design and Acceptance plan, which shall: … explain its approach to working with the Purchaser and its contractors to ensure a safe and efficient delivery of the TMM Fit Out Works.”
“This Component was reasonably answered by the Tenderer. The Tenderer provides a high level overview of their approach, they state they have extensive experience and will use this experience to ensure all works are planned, detailed and supported by safe systems of work, and where risk needs to be assessed be proven to be as low as reasonably practicable. There is limited information of their approach to ensure efficient delivery of the TMM Fit Out Works. A reasonable level of confidence is provided in the tenderer's response to this Component.”
“include a testing schedule that shall, for the Units and Wayside Data System, define testing for: providing customer assurance; demonstrating TTS compliance; demonstrating compliance with Mandatory Standards; demonstrating compatibility with the CRN; and supporting systems integration on the HS2 Network. The testing schedule should show for each phase of testing the planned start and end dates, location of tests, which Units from the fleet are to be used for each test, and a list of the areas of the design to be tested.”
“explain how the scope of testing has been determined and justify the completeness of the testing schedule.”
“describe how the testing schedule minimises the need for testing on the HS2 Network, what test facilities the Tenderer intends to use to achieve this and why these are sufficiently representative of the HS2 Network.”
“describe how the testing will contribute towards achievement of reliability growth, including any specific activities included to achieve this.”
“justify the credibility of the testing schedule to achieve the Project Programme (submitted in response to DP1.2) by showing that sufficient contingency has been included for all risks of delay.”
“Having reviewed the reasons for a 'Weak' assessment, the Lead Technical Assessor's opinion is that HS2 Ltd should be content to contract with Stebbing in spite of the score of 'Low Confidence'. The issues that caused the Low Confidence can be addressed via a change (i.e. requiring high speed testing) and assurance on reliability and testing during the contract.”
“4.3.4 … a. Only a single Evaluation Threshold for a sub plan of DP1 has not been met. This was a single question and the Tenderer needed only to score one Reasonable instead of a Weak at component level to have passed the Evaluation Threshold. By way of contrast, Stage 2.2 is made up of 45 questions with multiple Components. A Tenderer would not have failed to meet the Stage 2.2 Evaluation Threshold due to a single Weak score at Component level. Failure to meet the Evaluation Threshold results from the Tenderer scoring Moderate confidence or below across a significant number of their responses to the Stage 2.2 questions… b. Despite not meeting the Evaluation Threshold for sub-plan DP 1.5, the Tenderer has still met the overall Evaluation Threshold for DP1; c. The Tenderer has met all other Evaluation Thresholds, including Stage 2.2 with the highest overall score on this Stage; d. If this Shortfall Tender is deemed to meet the DP1.5 Evaluation Threshold, HS2 Ltd will have two Tenderers in Stage 5, which mitigates the potential risks to the conclusion of the Procurement … e. It may be considered disproportionate not to deem this Tenderer to have met this single sub plan Evaluation Threshold, where this is a very different position to the other Tenderers who have other Evaluation Threshold issues. 4.3.5 RP1 has also questioned the deliverability risk associated with allowing Stebbing to proceed to Stage 5. The Lead Technical Assessor has reviewed the DP1.5 response and consensus rationale for Stebbing to assess whether HS2 Ltd should be content to contract with Stebbing, if they become Lead Tenderer, despite the DP1.5 Evaluation Threshold not being met. 4.3.6 The Lead Technical Assessor’s opinion is that HS2 Ltd should be content to contract with Stebbing if they become Lead Tenderer in spite of the score of ‘Low Confidence’ in this one Sub-Plan. The issues that caused the Low Confidence can be addressed post contract award and do not require any change to the Train Proposal of the Tenderer or any amendment to the draft MSA terms during contractualisation.”
“undergoes a change in identity, control or financial standing or any other materially adverse change affecting the Tenderer which in the reasonable opinion of HS2 Ltd means that a Tenderer has become ineligible pursuant to the UCR 2016 and/or puts the Tenderer in breach of the PQP requirements and/or the Minimum Standards (as defined in the PQP) and/or would have an adverse impact on the Procurement.”
“15.6.1 HS2 Ltd is relying on the information provided to HS2 Ltd by Tenderers to date during the Procurement. If, at any time prior to Contract Award, there is any material change to such information, the Tenderer is required to notify HS2 Ltd immediately. For example, Tenderers must notify HS2 Ltd of any deterioration in the financial strength of the Tenderer (or Parties to a Consortium). 15.6.2 In the event that a Tenderer proposes a change in circumstances which involves a change in the status or identity of the Tenderer or the membership and/or structure of a Consortium, the Tenderer, or Lead Party (if the Tenderer is a Consortium), must immediately inform HS2 Ltd of such proposed change and provide such information as may be reasonably requested by HS2 Ltd in respect of the change. This will allow HS2 Ltd to consider the impact of the change and whether or not to provide its consent to the change. For the avoidance of doubt, changes in circumstances for these purposes include, but are not limited to, the following: a. any change in legal status of the Tenderer; b. any change in the membership of a Consortium; c. a Tenderer, or Tenderers, that subsequently decide to create, or join, a Consortium for the purposes of the Contracts; d. changing the provider of the Parent Company Guarantee and/or performance guarantee(s); e. the splitting, demerger, reallocation of equity, or other change in the composition of a Tenderer pre-qualified as a Consortium; f. changing the legal status of a pre-qualified Consortium, e.g. incorporating an unincorporated joint venture; and/or g. any change of control of the Tenderer or any Party in a Consortium. 15.6.3 HS2 Ltd reserves the right to refuse to consider or refuse consent to any proposed change in circumstances and/or to disqualify any Tenderer/Tenderers at any stage in the procurement process whose proposed change (i) means that the Tenderer no longer meets any of the requirements of Assessment Stages 1, 2 and 3 set out in the PQP, (ii) would lead to insufficient competition, and/or (iii) would otherwise be contrary to any of the rules of the Procurement (whether under the ITT or the UCR 2016). 15.6.4 HS2 Ltd further reserves the right to reassess a Tenderer’s EoI and/or Tender where a change in circumstances occurs or there is a material change to the information provided at the PQP stage, and to disqualify a Tenderer at any stage up to Contract Award if, due to such a change, the Tenderer no longer meets any of the requirements of Assessment Stages 1, 2 and 3 set out in the PQP.”
“15.7.1 Tenderers are reminded that under the PQP HS2 Ltd did not accept multiple EoIs from the same organisation / economic operator or from multiple organisations / economic operators within the same corporate group or otherwise under common ownership (whether as single Applicant or as Party to a Consortium). Tenderers are advised that in this ITT stage they may: a. only belong to one Tenderer and submit one Tender as that Tenderer. b. not offer their services as a rolling stock manufacturer acting as a sub-contractor to another Tenderer. 15.7.2 Where a change in circumstances (if consented to by HS2 Ltd) would lead to multiple Tenders from Tenderers within the same corporate group or otherwise under common ownership, as part of the information in the notification of such change in circumstances under Section 15.6, or as soon as possible thereafter, the affected Tenderers are required jointly to propose which of the Tenderers will continue in the Procurement following such change.”
“Tenderers shall treat all information relating to their Tender as confidential and where any such information needs to be copied to parties supporting the Tenderer, then the Tenderer shall ensure that those parties shall also treat the information as confidential. Tenderers may disclose, distribute or pass information to another person associated with their Tender (including but not limited to, for example, the Tenderer's insurers or advisers) if either: a. this is done for the sole purpose of enabling a Tender to be made and the person receiving the information undertakes in writing to the Tenderer to keep the Information confidential on the same terms as set out in this ITT (and the Confidentiality Agreement); or b. the Tenderer obtains the prior written consent of HS2 Ltd in relation to such disclosure, distribution or passing of information (HS2 Ltd's consent may be given subject to such conditions as it sees fit (including as to entry into legally binding confidentiality undertakings)).”
“HS2 Ltd may disclose detailed information relating to Tenders to HS2 Ltd’s members, directors, officers, employees, agents, advisors or beneficiaries and HS2 Ltd may make the Tender and Contracts available for private inspection by HS2 Ltd’s members, directors, officers, employees, agents, advisors or beneficiaries. HS2 Ltd also reserves the right to disseminate information that is materially relevant to the Contracts and/ or the High Speed 2 Project to all Tenderers, even if the information has only been requested by one Tenderer, subject to the duty to protect any Tenderer's commercial confidence in its Tender. HS2 Ltd will act reasonably as regards the protection of commercially sensitive information relating to the Tenderer, and commercially sensitive information will be kept confidential and only disclosed on a need to know basis within HS2 Ltd, its agents, advisors and beneficiaries.”
“(g) communicates to any person other than HS2 Ltd the amount or approximate amount of the proposed Tender (except where … (ii) such disclosure is made in confidence solely to enable affected Tenderers to decide, as required by paragraph 15.7.2, which of their Tenders will continue in the Procurement following a change in circumstances, provided that following such disclosure multiple Tenders are not subsequently submitted by such Tenderers).”
“Per section 15.6 of the IfT, HS2 Ltd requires Tenderers to notify it of any changes in circumstances. This includes, but is not limited to, the matters set out in paragraph 15.6.2 of the IfT. In addition, we would like to remind you of the provisions of section 15.7 (No Multiple Tenders). We note that closing is not expected until H1 of calendar year 2021 and that the proposed acquisition remains subject to various conditions. However, we would be grateful if you could keep us advised in a timely manner as to the programme and progress in achieving financial close for the acquisition and promptly notify us of any issues arising under sections 15.6 and 15.7 of the ITT.”
“As you may be aware, BT and Alstom signed the Sale and Purchase Agreement ("SPA") on Wednesday16 September 2020 , an important milestone in the Alstom Transaction process. Notwithstanding the signing of the SPA both BT and Alstom remain separate companies and bidders until the final acquisition agreement is signed closing the Alstom Transaction. The timing is not yet clear, but we are projecting that the Alstom Transaction will most likely close in quarter four of 2020 or quarter one of 2021, subject to any delays arising in completing the processes for achieving global regulatory approvals. The transaction is subject to approval by a number of global competition authorities, including in the EU, US, China and elsewhere. Under the terms of the SPA entered into between BT and Alstom, the parties are contractually required to close the Alstom Transaction within a limited number days of satisfaction of the last condition to the Alstom Transaction, which is expected to be the receipt of final competition approval.”
“Given the greater certainty on the closing date for the transaction, we would be grateful if you are able to provide us with an update on your plans for when you expect to request HS2 Ltd’s consent to the associated change in circumstances, including the decision as to which Tender remains in the procurement.”
“We will only be able to provide further information relating to consent for change of circumstances after the acquisition completes. If there is any change to the anticipated date of completion then we will keep you advised.”
“Accordingly, we would be grateful if you could please confirm that our understanding of the IfT (and our previous correspondence) is correct ie: - there is no change in circumstances for which Alstom would need to obtain HS2 consent; and - the tenderers have the discretion to determine which of the two tenders they wish to withdraw, in accordance with our own assessment process. We do not need to obtain HS2 consent for either the assessment process or the bid which we have accordingly determined should be withdrawn. Of course, we would expect that Bombardier Transportation will need to notify HS2 of a change in control and we assume that you are in correspondence with Bombardier separately on this issue.”
“The VHS Commitment given to the European Commission includes a bid selection mechanism requiring an independent expert (jointly appointed with Bombardier/Hitachi) to select which bid to maintain and which to withdraw with a view of maintaining the bid best positioned to win. In light of this legal requirement, and given the common interest of HS2, Alstom and Bombardier/Hitachi in ensuring that the best positioned bid remains in the procurement, it is important that the expert conducts an as thorough assessment of the bids as possible. We expect this process to take longer than the 2 weeks that you had initially envisaged during our correspondence over the summer. We will be in a better position to estimate and agree on the timeline once we receive your input on the questions below.”
“For the purposes of paragraph 15.7.2 of the ITT, please note that the parties are in the process of agreeing to the appointment of an independent expert in accordance with the European Commission mandated mechanism to determine which bid (Alstom's or JV's) will continue in the procurement. We intend to appoint the independent expert and to finalise the terms of the expert determination process imminently, so that the independent expert determination can commence. By nature of the expert being independent, they will need to gather and verify the relevant bid data from both bidders and to address any clarifications with HS2, which is likely to take some time. Once the process has been established, we will advise HS2 accordingly.”
“You are aware that your Tender will not be evaluated further in the procurement process for the reasons stated in the notification letter. While we have seen Alstom’s public announcement of the completion of the acquisition as scheduled on29 January 2021 , we are not aware of what information has been shared between Alstom and the Bombardier Transportation/Hitachi joint venture. Our suggestion is that Alstom and the Bombardier/Hitachi joint venture may wish to write to us seeking our agreement that your confidential notification letters can be shared with each other and with the appointed expert. We would provide this agreement when requested. We are then happy to liaise further with you, or directly with the expert, in relation to any other information that should be required...”
“… we are not aware of the outcome of stages 1-4 for the Hitachi/Bombardier JV bid. We are content for HS2 to share the result of stages 1-4 for the Alstom bid with the Hitachi/Bombardier JV, as a verbal disclosure. We consider the details of HS2's assessment to be commercially sensitive and highly confidential and we do not consent to HS2 sharing the notification letter with the Hitachi/Bombardier JV, nor do we consent to HS2 sharing any further details beyond that Alstom was found to be unsuccessful at Stage 1-4. In particular, we do not consent to HS2 informing the Hitachi/Bombardier JV of any breakdown of the Stage 1-4 outcome for Alstom by reference to individual stages. We would expect HS2 to provide us with a similar level of information in relation to the Hitachi/Bombardier JV.”
“There have been no changes to the original EoIs previously assessed, the Tender submission for the ITT or the Revised Tender Information submitted by the JV. Confirmation has been provided that the PCG provider is unchanged. As such, no further documentation has been reviewed. The Alstom Transaction was a shareholding acquisition of Bombardier Transportation (Investment) UK Ltd. There is therefore no cause to re-assess the Tenderer's EoIs and the Tenderer still meets the requirements of the PQP Assessment Stages 1 to 3. … The Procurement has progressed through to Stage 5, with the outcome communicated to Tenderers. The two parties involved in the acquisition are aware of the status of each other in relation to the outcome of Stages 1 to 4. The change in circumstances will not affect the number of Tenderers in Stage 5 of the procurement. … HS2 Ltd is aware of no other reason why it should refuse consent to the proposed change…”
“(a) A duty to seek clarification of a tender will arise only in ‘exceptional circumstances’ (Tideland, SAG), sometimes called ‘limited circumstances’ (Antwerpse). (b) Such a duty may arise where a tender is ‘ambiguous’, but it will not do so in every case where a tender is ambiguous (Tideland) (c) It will only arise ‘where the terms of a tender itself and the surrounding circumstances known to [the contracting authority] indicate that the ambiguity probably has a simple explanation and is capable of being easily resolved’ (Tideland). (d) Such a duty may also arise where there is a ‘simple clerical error’ (Antwerpse) or ‘when it is clear that [the details of a tender] require mere clarification, or to correct obvious material errors’ (SAG). This would appear to be the same as the ‘serious manifest error’ referred to in Adia. It is not necessary for the error to be ‘clerical’ (whatever that might mean) but it must be ‘simple’, ‘material’, ‘serious’ and ‘manifest’. (e) The duty will not arise where any amendment or clarification provided post-tender would ‘in reality lead to the submission of a new tender’ (SAG). The contracting authority ‘cannot permit a tenderer generally to supply declarations and documents which will require to be sent in accordance with the tender specification and which were not sent…’ (Archus). (f) There is no authority to support Mr Westgate's submission that 'the change generated by a request for clarification would have to fundamentally alter the nature of the bid before it becomes unacceptable'. I consider that this proposition is contrary to the cases I have cited and is unworkable in practice.”
“A principle of proportionality also applies, a failure to comply with which will constitute a manifest error. Thus there is a power under regulation 18(26), and in some circumstances there may be an obligation given the principle of proportionality, upon a contracting authority to seek clarification of a bid. But unless an authority in this position treats tenderers equally and fairly, it will not satisfy the requirements for equal treatment and non-discrimination. Because the authority must treat tenderers equally and fairly, any request for clarification should not appear to have unduly favoured or disadvantaged the tenderer to whom it is addressed: C-336/12 Ministeriet for Forskning v Manova A/S[2014] PTSR 254 (2013) Oct 10th at [25]-[40] {AB/27/5-6}; William Clinton trading as Oriel Training Services v Department for Employment and Learning [2012] NICA 48 at [23]-[27].”
“(a) There is no basis for imposing a general duty on authorities (here, HS2) to investigate whether a tender is abnormally low [193]. (b) If the authority considers that a particular tender is abnormally low and considers that it should reject the tender for that reason, there is a duty on the authority to require the tenderer to explain its prices [193]. (c) Absent a satisfactory explanation, the authority ‘shall reject the tender’ in the circumstances expressly set out in Regulation 69 PCR 2015 and Regulation 56 (2) namely non-compliance with specified fields of environmental and social legislation [193]. UCR 2016 is different, and Regulation 76(6) states that the ‘Utility may decide not to award a contract to the tenderer’ if it does not comply with specified fields of environmental, social and labour law legislation. This is rather different wording than used in Regulation 56(2) PCR 2015. (d) Otherwise, the authority is entitled to reject the tender if the evidence does not satisfactorily account for the low level of price, but it is not required to do so [193]. (e) The court’s function 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 is only to interfere in cases where the contracting authority has been manifestly erroneous [197]. (f) There is no definition of the words ‘abnormally low’. However, the expression must encompass a bid which is low (almost invariably lower than the other tenders) and the bid must be beyond and below the range of anything which might legitimately be considered to be normal in the context of the particular procurement [204]. (g) A contracting authority has a discretion as to what test it uses for identifying what may be an abnormally low tender and an ‘anomaly threshold’ is a perfectly permissible approach as a matter of EU law [205].”
“10.3.1 In accordance with Regulation 84 of the UCR, each of the two Commercial Advisors, acting independently, should consider whether any Assessed Price, or any component as defined in table 11 of the IfT, appears to be abnormally low. The findings and reasoning must be recorded in the Evaluation System. 10.3.2 Subsequently, the Procurement Lead and the Lead Stage 5 Assessor will convene a meeting with the Commercial Advisors to review the findings of each Commercial Advisor, including the noting and addressing of any differences in findings between the Commercial Advisors. 10.3.3 The Procurement Lead and the Commercial Advisors will agree upon an appropriate course of action for any issues raised. 10.3.4 In the event that any of the prices (or components thereof) appear to be abnormally low, the Procurement Lead must advise RP1, clearly documenting the reasons why the Assessed Price and/or component(s) are considered abnormally low. As required by Regulation 84, the Procurement Lead will subsequently raise a clarification question with the Tenderer to seek explanation of the relevant price or costs in their Tender. 10.3.5 If, in the opinion of the Commercial Advisors, the Tenderer’s response satisfactorily explains the Assessed Price of the Tender, the evaluation may proceed. In all other circumstances the Procurement Lead must advise the matter to RP1 for consideration. 10.3.6 The Procurement Lead must ensure that any correspondence relating to this matter is saved to the Evaluation System.”
“The capital prices provided by each of the Tenderers are within the benchmark range and provide no cause for concern. Moreover, additional confidence in the manufacturing aspect of the prices comes from further review which shows that the balance of non-recurring and recurring costs and proportion of the prices allocated to interiors are all in line with market norms. The maintenance prices provided by each of the Tenderers are notably lower than expected and are below the benchmark range, and therefore merited further consideration. As an initial observation, it is noted that the comparable benchmark data includes a small number of transactions and consequently limited reliance should be placed on it. Moreover, it is further noted that market trends in recent years have seen considerable reductions in the cost of rolling stock maintenance as manufacturers have refined and optimised their maintenance regimes. Nonetheless, the whole life average cost from the bidders show prices that are lower than the trends have indicated. This is not necessarily a point of concern as analysis of the maintenance price build-up of each Tender identifies similarities in the maintenance approach and underlying cost structures for the scope of work. Furthermore, it should be considered that the HS2 requirement for a whole life price has permitted Tenderers to further optimise plans beyond what is possible in more limited duration arrangements reflected in the available market data. Detailed review of the Tenderers’ maintenance models (Appendix K of the Tender submission) shows that the main differences in the Tendered prices arise for the different levels of provisions for risk, contingency and margin, with Le Chiffre being lower than the other Tenderer assessed at Stage 5. The consistency in underlying costs coupled with the observed market trends and optimisation opportunity offered by the HS2 requirement suggests that whilst the prices are lower than the available benchmark data, the prices can be explained and justified, and while clearly different commercial approaches have been taken this does not mean that the required services cannot be delivered for the prices offered, and hence they are not necessarily abnormal. Recognising the different commercial approaches taken by the Tenderers, in the case of Le Chiffre, HS2 should be mindful of the low levels of provision for risk, contingency and margin in their maintenance price as this increases the risk of the Tenderer losing money at some point during the term of the TSA. As a result, one or more of the following adverse situations could arise: (i) a failure to control costs within CPI; (ii) the need to undertake heavy maintenance/overhaul activities more frequently; and (iii) a failure to achieve the required levels of fleet reliability resulting in increases in maintenance costs and liabilities under the performance regime. It is recommended that HS2 Ltd reflects this in its risk register and develops appropriate mitigations.”
“[47] … the principle of equal treatment of tenderers ... implies, first of all, that tenderers must be in a position of equality both when they formulate their tenders and when those tenders are being assessed by the contracting authority (SIAC Construction, paragraph 34). [48] More specifically, that means that when tenders are being assessed, the award criteria must be applied objectively and uniformly to all tenderers (SIAC Construction, cited above, paragraph 44). [49] Second, the principle of equal treatment implies an obligation of transparency in order to enable verification that it has been complied with, which consists in ensuring, inter alia, review of the impartiality of procurement procedures … [50] Objective and transparent evaluation of the various tenders depends on the contracting authority, relying on the information and proof provided by the tenderers, being able to verify effectively whether the tenders submitted by those tenderers meet the award criteria. [51] It is thus apparent that where a contracting authority lays down an award criterion indicating that it neither intends, nor is able, to verify the accuracy of the information supplied by the tenderers, it infringes the principle of equal treatment, because such a criterion does not ensure the transparency and objectivity of the tender procedure. [52] Therefore, an award criterion which is not accompanied by requirements which permits the information provided by the tenderers to be effectively verified is contrary to the principles of community law in the field of public procurement.”
“The Pre-Qualification pack (PQP) sets out (paras 5.7.14 to 5.7.28 certain financial and economic tests to be applied to an Applicant (the “PQP Financial Tests”). The PQP Financial Tests are designed to test the economic and financial resilience of an Applicant to fulfil their contractual obligations if they were to be awarded the contracts. HS2 Ltd has: a. requested updated financial information from the Consortium; b. re-run the PQP Financial Tests; c. requested and received a written statement in accordance with para 5.7.20 of the PQP regarding the due diligence criteria that are not met by each Party; d. asked the Consortium to confirm any matters disclosable under Questions S3a.01-Q02, Q04 and Q05 in the PQP; and e. in light of the above, finalised the outcome of the PQP Financial Tests re-run based on updated financial information. This note records the outcome of the PQP Financial Tests re-run using updated financial information.”
“As you will be aware HS2 Ltd is required to seek approval from DfT at each procurement stage for rolling stock contracts including selection of a preferred bidder and contract award as set out in the Development Agreement Clauses 12.5(F) (d) and (e). In line with this, we have been following an approach which sought to conclude the main assurance and approval steps now upon selection of the preferred supplier. Approval of the final award decision would then have been routine assuming you had contractualised the deal within the approved mandate. Our teams have discussed this approach in light of the current legal challenge. The changed situation means that there is more risk in concluding the main approvals at this point and in doing so we could conceivably complicate the legal defence. We have therefore agreed with the Principal Accounting Officer to reverse this plan and move the main approvals point to the contract award stage following any court judgment and based on your proposed final position with the preferred bidder. Based on your assurance that the lead bidder (Le Chiffre) has the best overall Whole Life Value (WLV) in accordance with your model and Invitation to Tender and in line with your Tender Opening and Evaluation Plan, you therefore have approval to proceed to notify the preferred bidder and to prepare a final position for final approval ahead of the final award decision and subject to any court judgment. As part of the contractulisation process you should not agree to anything that would be deemed novel or contentious without our prior agreement.”
“A 200m Train shall achieve a journey time of less than 03:45:30 (hours: minutes: seconds) between London Euston and Glasgow Central, in either direction, including two minutes stops at Old Oak Common and Preston. This requirement shall be achieved using the criteria specified in Appendix C.”
“Intermediate stops shall include a two-minute Dwell Time at each.”
“The Unit shall deliver 95% confidence of achieving a Dwell Time of 2 minutes at intermediate stations, calculated in accordance with the Static Dwell Time Model in Appendix I using the 1SL.”
“Technical problem … The operational problem could be addressed by adding additional bodyside doors to the tendered rolling stock design (6 additional doors per side, taking the total to 16 doors per side, and this would mirror the HS2 Reference Train). The Commercial problem Adjustment to the tendered rolling stock (by increasing the required number of bodyside doors) will increase its price (both initial capital and ongoing maintenance). It will reduce the number of passenger seats which will in turn reduce the whole life value in the tender evaluation model (but it may not reduce the actual passenger revenue). It will reduce the predicted reliability of the unit which in turn will have a negative impact on the system performance but having more doors means there is redundancy in operational terms, and potentially a lower risk of train cancellations. The additional doors will however improve dwell time performance at CRN stations enabling robust delivery of faster dwell times at CRN stations that in turn provide journey time benefits… The Procurement problem Changes to the Lead Tenderer’s Train Proposal increases the risk that an unsuccessful bidder may challenge the award decision. The changes would need to be undertaken in accordance with the Utilities Contract Regulations (UCR); this applies to modifications as well as awarding a new contract. There are broadly three options: (i) do nothing and accept the issue, (ii) make a change during contractualisation, and (iii) make a change after contract award. Negotiating this change will have a cost and programme impact either before contract award or after…”
“Summary Position Statement • The Lead Tenderer’s design solution results in proportionately worse dwell time performance on the CRN than was expected from the requirements. • Additional bodyside doors would address this issue and this would also improve overall unit accessibility for passengers (at CRN and HS2 stations)… • Other ways of improving dwell time and accessibility could be explored in design development (noting this may extend the design phase). • There are two timing points to introduce a change, both carry risk: ◦ Pre-award in Contractualisation ◦ Post-award in Design Development • On balance to HS2, the risks associated with introducing the change after contract award are more tolerable than those during contractualisation (which could lead to challenge and further delay to contract award). • WCPD requests that the risks of this approach be made explicit in the governance papers submitted by HS2 as part of the Recommendation to Award the Rolling Stock Contract. Next Steps • Consideration around re-running Legion modelling to understand actual impact of Lead Tenderer design on CRN station dwell-time performance … • Agree with procurement team when engagement with Lead Tenderer can commence, noting that WCPD requests that it should be ASAP and ideally be before contract award … Lead Tenderer supports early project to project engagement, but HS2 will only look to commence this once contractualisation has been completed (indicatively engage from late-July)…” • The Lead Tenderer’s design solution results in proportionately worse dwell time performance on the CRN than was expected from the requirements. • Additional bodyside doors would address this issue and this would also improve overall unit accessibility for passengers (at CRN and HS2 stations)… • Other ways of improving dwell time and accessibility could be explored in design development (noting this may extend the design phase). • There are two timing points to introduce a change, both carry risk: ◦ Pre-award in Contractualisation ◦ Post-award in Design Development • On balance to HS2, the risks associated with introducing the change after contract award are more tolerable than those during contractualisation (which could lead to challenge and further delay to contract award). • WCPD requests that the risks of this approach be made explicit in the governance papers submitted by HS2 as part of the Recommendation to Award the Rolling Stock Contract. • Consideration around re-running Legion modelling to understand actual impact of Lead Tenderer design on CRN station dwell-time performance … • Agree with procurement team when engagement with Lead Tenderer can commence, noting that WCPD requests that it should be ASAP and ideally be before contract award … Lead Tenderer supports early project to project engagement, but HS2 will only look to commence this once contractualisation has been completed (indicatively engage from late-July)…”
“4.1.2.20 … A design with fewer doors could have a detrimental impact on passenger perception regarding HS2 services enhancing accessibility. A key sponsor requirement of the programme relates to accessibility of services and that they ‘are simple to use and accessible to all passengers including people with reduced mobility’. Conceptually fewer doors per coach can easily be seen to make boarding more difficult regardless of whether this is the case. Passengers may also have similar concerns in respect of safety evacuation from a train with fewer doors. 4.1.2.21 The unconventional design could create unwanted media attention with the railway technical press likely to be questioning of the design creating unnecessary adverse attention for the project. 4.1.2.22 WCPD and HS2 Ltd have discussed this issue in detail. Both parties agree that the Lead Tenderer's design solution results in proportionally worse dwell time performance on the CRN than was expected from the requirements. Additional bodyside doors would address this issue and this would also improve overall unit accessibility for passengers (at CRN and HS2 stations)… WCPD recommend the unit design is modified to increase the number of bodyside doors to 16 on each side of the unit. 4.1.2.23 A change to the number of doors will have a significant impact on the interior layout of the coaches, and consequently the position of the vestibules and toilets, and the total number of seats. The earlier this change is integrated the better. On balance to HS2 Ltd, the risks associated with introducing the change after contract award are more tolerable than those during contractualisation (which could lead to challenge and further delay to contract award). WCPD has requested HS2 Ltd to make this matter clear in Governance Papers supporting the Rolling Stock procurement award.”
“As set out in the technical note, WCPD and HS2 Ltd have discussed this issue in detail and agree that the Lead Tenderer’s design solution poses several risks to in service performance of the Units. Additional dwell time modelling work is now being conducted by HS2 Ltd and this will be used to inform further discussions with WCPD to define and agree the modifications required to the design of the vehicles to mitigate the identified risks…”
“… no agreement to make a change had been made at that point and, on balance, through the points we've looked at already, any change that we made to the rolling stock, HS2 saw it more tolerable on balance carrying that out post contract award.”
“WCPD has recommended that the Lead Tenderer’s design is modified to increase the number of bodyside doors to 16 on each side of the unit and included as part of contractualisation. However, HS2 Ltd has taken the decision not to include this within contractualisation, as the change proposal has not yet been fully developed. HS2 Ltd has worked with WCPD to quantify the potential change cost to be included in the risk register for rolling stock.”
“HS2 Ltd require two-minute dwell times at intermediate stations to achieve HS2 railway capacity and journey times. The Train Technical Specification requirement TTS-161 requires Units to deliver 95% confidence of achieving a dwell time of 2 minutes at intermediate stations. At tender stage, HS2 Ltd provided tenderers with the Static Dwell Time Model (SDTM) which was used to calculate the level of confidence achieved by the tendered Build Layout. In response to this requirement, the Train Manufacturer & Maintainer (TMM) tendered a design with 10 Exterior Doors per side (200m Unit), as detailed in the General Layout drawing of the Train Proposal. The TMM’s Train Proposal has demonstrated compliance with the TTS-161 requirement with 95% confidence of achieving a Dwell Time of 2 minutes, calculated using the Static Dwell Time Model. HS2 Ltd and West Coast Partnership Development (WCPD) have subsequently identified issues with the dwell times of this design in practice, which could lead to delays or require timetabled dwell times and journey times to be extended. In addressing the risk to achieving 2-minute dwells, this Purchaser Change Notice requests that the TMM assesses the impact of replacing Train Technical Specification requirement TTS-161 with two new requirements, as set out below: 7.15.6.1 TTS-161 – Door positions Each vehicle of the Unit shall have two Exterior Doors per side. 7.15.6.2 TTS-3684 – Door positions The Unit shall achieve an Operational Component of Dwell Time, as defined in Appendix I, section 1.4 …. Other TTS requirements may change as a consequence of changing the layout to address these two requirements. The TMM should identify these in its initial response. The Purchaser hereby requests that an Initial Change Appraisal is delivered by the TMM in accordance with the MSA Full Change Process.”
“14.6.1 Negotiations with the Lead Tenderer may cover any Qualifications, the contractualisation of the Tender (including as set out in Section 14.2 above), the impacts of Brexit (see Section 11.5) and may (without limitation) seek to improve the acceptability of any other matters identified as being less than fully satisfactory to HS2 Ltd against the requirements set out in the ITT. 14.6.3 If, during the negotiation stage, any amendment is made to the Lead Tenderer’s Tender that has a net negative impact on the economic advantage offered by the Lead Tenderer, such that it would increase the Assessed Price of that Tender, then HS2 Ltd will verify whether, notwithstanding such amendment, the Lead Tenderer would still be the first ranked Tenderer following the process set out in Section 12.”
“[491] … The use of the word “negotiated” in the regulation would suggest that such a point is somewhat compelling; utilities are given very wide scope in terms of negotiation. The wording of the regulation is demonstrably wider than that of its counterpart in the Public Contracts Regulation, namely Regulation 29, which is competitive procedure with negotiation. In my judgment, this is to reflect the different type of projects undertaken by utilities, compared to other contracting authorities, who would use the Public Contracts Regulations rather than UCR 2016. Utilities need a wider degree of flexibility because of the different subject matter of the contracts. [492] Given the nature of utilities projects, such as HS2 (the scale of which is obvious) or the London Underground one (in that case it was a 30 year project) it would be far from sensible if, having selected the winning bidder, the utility was not permitted to negotiate, agree, discuss or make changes with that economic operator. As long as the process that leads to the winning bidder being identified is fair, transparent, treats the bidders equally and complies with the regulatory requirements, then once that winner is chosen, the utility is not bound strictly to contract only on the specific details contained in the tender. The opposite conclusion would make utilities projects unmanageable. Consider, as an example, start dates. Delays are caused by any number of factors. If the start date of a project is moved back by, say, 6 months, I do not interpret the regulations as requiring a further procurement competition to be undertaken reflecting that change. There is no distortion to the competitive process by permitting such negotiation, and I find that the regulations permit this. If this were not permitted, a change of dates would require a new competition. Such a conclusion would be somewhat lacking in any common sense or logic.”
“(1) the power of the court to grant declaratory relief is discretionary. (2) There must, in general, be a real and present dispute between the parties before the court as to the existence or extent of a legal right between them. However, the claimant does not need to have a present cause of action against the defendant. (3) Each party must, in general, be affected by the court's determination of the issues concerning the legal right in question. (4) The fact that the claimant is not a party to the relevant contract in respect of which a declaration is sought is not fatal to an application for a declaration, provided that it is directly affected by the issue. (5) The court will be prepared to give declaratory relief in respect of a "friendly action" or where there is an "academic question" if all parties so wish, even on "private law" issues. This may particularly be so if it is a "test case", or it may affect a significant number of other cases, and it is in the public interest to decide the issue concerned. (6) However, the court must be satisfied that all sides of the argument will be fully and properly put. It must therefore ensure that all those affected are either before it or will have their arguments put before the court. (7) In all cases, assuming that the other tests are satisfied, the court must ask: is this the most effective way of resolving the issues raised. In answering that question it must consider the other options of resolving this issue.”
“Q. Now, if Bombardier went insolvent, the pension scheme was not rescued by another employer and the pension scheme did not have enough assets to buy benefits equal to or higher than PPF levels, then and only then it would go into the PPF. That’s right, isn’t it? A. Yes, that’s my understanding, yes. Q. And if the pension scheme went into the PPF, Mr Sterry and Mr Williamson wouldn’t lose their whole pensions, would they? They would lose out by 10% and a potential loss on inflation? A. Yes, that’s my understanding, yes Q. But the potential loss on inflation only occurs if inflation is more than 2.5% because that is the level at which inflation in the PPF is capped? A. That is my understanding…”
“Tom [Williamson] … and I have filled out the forms and confirmed that we believe we have no conflict of interest. All three of us have final salary pensions in one of the Bombardier UK pension schemes. These schemes are independent of Bombardier and not invested in Bombardier. However, the pension schemes do receive contributions from Bombardier and so we have some interest in Bombardier remaining a going concern in the UK, but not specifically in whether Bombardier is involved in the HS2 project. Therefore, we do not think this is a conflict of interest.”
“Due to the nature of the industry we often have staff who have pensions with previous employers who are part of the HS2 supply chain - this is not viewed as a material conflict that requires action but it is worth the individuals recording the pension on the Register of Interest Form for transparency and the form being held on their staff record.”
“If someone who is going to be an assessor (and has to sign the COI declaration form) has previously worked at a company involved in the procurement process, but may not necessarily [have] been involved with anything over there that makes them a conflict of interest, what happens if they were just an employee but had a pension with that organisation or was part of a share scheme which results in them still having shares at that company?”
“Please see mitigations, measures below provided on the basis the individual's Lead Design Assurance Engineer related undertakings whilst employed by Bombardier is unrelated to the Rolling Stock bid, therefore no advantage could be provided to the individuals previous employer. Please can you confirm the above. 1. Recommend the HS2 procurement team ensure that the moderator is made aware of the individuals disclosure (at evaluation/assessment stage). 2. Recommend the responses be anonymised (if applicable). 3. Recommend that at least one of the two assessors be an individual [who] has no associations with the bidding organisation. 4. Recommend the individual be reminded of unconscious bias and to treat all responses equally. 5. Recommend the individual complies with HS2's 10 golden rules. 6. Recommend the HS2 procurement team ensure the individual is reminded of their confidentiality obligations. 7. Recommend the individual to remain transparent and update HS2 procurement team compliance team accordingly.”
“We understand from TOEP paragraph 5.1.1.c that all Procurement Project Team Members (including Mr Sterry) ought to have completed Conflict of Interest Declaration Forms as part of the evaluation preparation process and that any declared conflicts (real or perceived) should have been referred to the Compliance Team for further instructions (TOEP paragraph 5.1.2). Given the significance of Mr Sterry’s opinion in the context of this Procurement and the prima facie appearance of a conflict of interest in this situation, please therefore provide Mr Sterry's Conflict of Interest Declaration Form and all other conflict of interest documentation relating to him.”
“The Lead Technical Assessor who provided this opinion was Tim Sterry, HS2's Head of Rolling Stock Engineering, who had spent 15 years working at Bombardier and was until 2016 employed as its Lead Design Assurance Engineer. None of the disclosure that has been provided to Siemens to date gives any indication that any consideration was given to the apparent conflict of interest in these circumstances, despite the fact that because of the content of the JV's testing plan (referring inter alia to its partners' previous projects and identity of testing locations) it would have been impossible to anonymise their submission to someone who has Mr Sterry's inevitable knowledge of his long term employer or detailed knowledge of the industry.”
“In his statement, Mr Sterry acknowledges his sixteen years of employment at Bombardier and details the extent of his role in the evaluation process. He also admits that he “knew the identities of tenderers and pseudonyms throughout Stages 2 and 3 of the evaluation process”... While your client has previously disclosed Mr Sterry’s ‘Availability, Competency, Conflicts of Interest and Confidentiality Declaration’ (“COID”) from June 2019 … this did not particularise the actual extent of Mr Sterry’s ongoing interests in and/or connections to his previous employer. Please therefore now provide details of any interests Mr Sterry continues to hold (directly or indirectly) in Bombardier Transportation, Bombardier Inc or any related company … This should include details of: (a) Interests in any shares, share options, or other securities; (b) Interests in any company pension scheme or pension scheme linked to the performance of any such company; (c) Any other financial interests connected to any such company. Please also confirm that … Mr Sterry held (directly or indirectly) no other financial interests in Bombardier Transportation or any related company at any point during the currency of the Procurement, or else provide details of the same. Further … Mr Sterry held a number of roles at Bombardier and worked across a range of different projects. Please therefore give full details of the extent to which Mr Sterry had worked with, collaborated or otherwise knew any members of the JV's bid team, and the extent to which he has continued to communicate with any members of the JV’s bid team since joining HS2.”
“a. Mr Sterry is a member of the Bombardier Transportation UK Pension Plan from his prior employment. He has no stock/shares or other financial interests in either member of the JV; b. It is unclear what your 28 July letter means when it refers to the JV’s bid team or who was in this. It is likely that Mr Sterry would have worked at some point in his career with one or more of the engineers who contributed to the technical aspects of the JV’s bid, but Mr Sterry had no communication with any past contacts regarding the JV’s tender during the course of the procurement; c. In relation to the steps taken to manage the risk of conflict, the process set out in the TOEP in respect of the conduct of evaluation itself protects against any single individual having undue influence over the outcome of assessment.”
“In breach of its obligations, including its duties of equal treatment, transparency, proportionality and those arising under Regulation 42 of the UCR and its duty to take appropriate measures to prevent conflicts of interest, the Defendant erroneously considered that there was no conflict of interest arising upon being notified by Mr Sterry of his and Mr Williamson’s membership of the Bombardier UK Pension Scheme on7 June 2017 . In particular, as set out above, the Defendant’s compliance team erroneously advised Mr Sterry on7 June 2018 that his Bombardier pension was “not a material conflict that requires action”
“For the avoidance of doubt, the Claimant does not allege that the mere fact of the previous employment of any employee by one of the bidders, without more, gave rise to a conflict of interest. Rather, the Claimant’s case is that the Defendant breached its obligations by failing to take adequate steps to identify and manage the financial conflict of interest in respect of Mr Sterry and Mr Williamson arising as a result of their membership of the Bombardier UK Pension Scheme.”
“For the avoidance of doubt, the Claimant does not allege that this is a breach of the anonymisation requirements in the TOEP.”
“This regulation limits the time within which proceedings may be started where the proceedings do not seek a declaration of ineffectiveness.”
“Subject to paragraphs (3) to (5), such proceedings must be started within 30 days beginning with the date when the economic operator first knew or ought to have known that grounds for starting the proceedings had arisen.”
“Subject to paragraph (5), the Court may extend the time limit imposed by this regulation … where the Court considers that there is a good reason for doing so.”
“The Court must not exercise its power under paragraph (4) so as to permit proceedings to be started more than 3 months after the date when the economic operator first knew or ought to have known that grounds for starting the proceedings had arisen.”
“[19] … what degree of knowledge or constructive knowledge is required before time begins to run? The knowledge must relate to, and be sufficient to identify, the grounds for bringing proceedings …”
“There are dangers in dealing with this question in the abstract, and prescribing something which purports to be a formulated standard for something like knowledge of the grounds of a claim. However, some sort of boundaries need to be set. It cannot sensibly be the case that a claimant has to have great detail of how any breach came about before he has knowledge for present purposes. Many claimants do not have full knowledge until after a trial, because additional facts emerge throughout a piece of litigation. Claimants start actions (and are expected to start actions, for limitation purposes) at a time when their knowledge is incomplete, and when detail is not known. I do not see why actions under the Regulations should be any different. Any attempt to require levels of detail would be likely to run counter to the principle that challenges should be indicated swiftly and mounted swiftly. The standard ought to be a knowledge of facts which apparently clearly indicate, though they need not absolutely prove, an infringement.”
“[16] … what is needed is knowledge of material which does more than give rise to suspicion of a breach of the Regulations but that there can be the requisite knowledge even if the potential claimant is far from certain of success. Answering the question whether the facts of which a potential claimant was aware were such as to ‘apparently clearly indicate’ a breach of duty by the contracting authority will require consideration of the nature of the procurement exercise; of the nature of the particular breach alleged; and of the nature and extent of the particular factual material. … [18] … If the allegations are on proper analysis different breaches of the same duty then a potential claimant has the requisite knowledge when it knows or ought to have known of facts clearly indicating a breach of that duty. The time period is not extended simply by the potential claimant learning at a later stage of further separate breaches of the same duty even if they occurred "before or after the breaches already known". If, however, the potential claimant learns of facts indicating a breach of a different duty then it may be the position that time begins to run anew in respect of a claim alleging a breach of that duty.”
“A number of authorities have considered what may be a good reason for extending time limits, either in principle or on the facts of a particular case. Many have said that it would be unwise to try to provide a definitive list of what the court will or will not take into account in assessing what may be good reason for extending time limits. I agree, for the simple reason that the regulation does not impose any fetter or limitation upon what may be brought into account. For that reason I would not accept that the claimant must show good reason for not issuing in time as a necessary prerequisite to the exercise of the court's discretion … although the absence of good reason for not issuing in time is always likely to be an important consideration. And when considering what other factors may be brought into account if appropriate in a given case … relevant considerations will include: (a) the importance of the issues in question; (b) the strength of the claim; (c) whether a challenge at an earlier stage would have been premature, the extent to which the impact of the infringement is unclear and the claimant’s knowledge of the infringement; and (d) the existence of prejudice to the defendant, third parties and good administration. For the reasons I have already given, I do not think that this should be regarded as an exhaustive catechism, even in general terms.”
“(1) Utilities that are contracting authorities shall take appropriate measures to effectively prevent, identify and remedy conflicts of interest arising in the conduct of procurement procedures so as to avoid any distortion of competition and to ensure equal treatment of all economic operators. (2) For the purposes of paragraph (1), the concept of conflicts of interest shall at least cover any situation where relevant staff members have, directly or indirectly, a financial, economic or other personal interest which might be perceived to compromise their impartiality and independence in the context of the procurement procedure. (3) For the purposes of – (a) paragraph (2), “relevant staff members” means staff members of the contracting authority, or of a procurement service provider acting on behalf of the contracting authority, who are involved in the conduct of the procurement procedure or may influence the outcome of that procedure; (b) sub-paragraph (a), “procurement service provider” means a public or private body which offers ancillary purchasing activities on the market.” (a) paragraph (2), “relevant staff members” means staff members of the contracting authority, or of a procurement service provider acting on behalf of the contracting authority, who are involved in the conduct of the procurement procedure or may influence the outcome of that procedure; (b) sub-paragraph (a), “procurement service provider” means a public or private body which offers ancillary purchasing activities on the market.”
“[42] ... the contracting authorities are to treat economic operators equally and non-discriminatorily and to act in a transparent way. It follows that they are assigned an active role in the application of those principles of public procurement. [43] Since that duty relates to the very essence of the public procurement directives (see judgment in Michaniki, C-213/07, EU:C:2008:731, paragraph 45), it follows that the contracting authority is, at all events, required to determine whether any conflicts of interests exist and to take appropriate measures in order to prevent and detect conflicts of interests and remedy them. It would be incompatible with that active role for the applicant to bear the burden of proving, in the context of the appeal proceedings, that the experts appointed by the contracting authority were in fact biased. Such an outcome would also be contrary to the principle of effectiveness and the requirement of an effective remedy laid down in the third subparagraph of Article 1(1) of Directive 89/665, in light, in particular, of the fact that a tenderer is not, in general, in a position to have access to information and evidence allowing him to prove such bias. [44] Thus, if the unsuccessful tenderer presents objective evidence calling into question the impartiality of one of the contracting authority’s experts, it is for that contracting authority to examine all the relevant circumstances having led to the adoption of the decision relating to the award of the contract in order to prevent and detect conflicts of interests and remedy them, including, where appropriate, requesting the parties to provide certain information and evidence.”
“The court must first ascertain all the circumstances which have a bearing on the suggestion that the [decision maker] was biased. It must then ask whether those circumstances would lead a fair minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the [decision maker] was biased.”
“The ultimate question is whether the proceedings in question were and were seen to be fair. If on examination of all the relevant facts, there was no unfairness or any appearance of unfairness, there is no good reason for the imaginary observer to be used to reach a different conclusion.”
“Mmm. Last I heard, the LDs on SWR are so high they would ‘bankrupt the company’, so emphasis is being switched between projects.”
“Q. … where have you heard that from? A. I’m not completely sure I think it was from some discussion with probably my former manager at Bombardier. Q. And who was that? A. Paul Carter. … Q. And where is he now? A. He's still at Bombardier. … Q. So when did you have that discussion with him? A. I don't recall. Sometime before the WhatsApp message. Q. What, during the procurement evaluation stage? A. It probably would have been during that time, yes. Q. So you were having discussions with people at Bombardier during the procurement evaluation period? A. Some discussions, yes, not with people who were working on the procurement. Q. So who were you speaking to apart from - A. People who were my friends at the company. Q. Can you tell us about who you were speaking to please? A. So Paul Carter. I think one of the persons is Suzanne Hudson, who now works for HS2 but at the time probably at some parts of the tender process was working for Bombardier. Q. Sorry, I should have asked you. Paul Carter, what's his job title? A. … I don't know his exact job title at the moment but he is effectively the head of the approvals and assurance group for Bombardier in Derby. Q. So approvals and assurance would relate to regulatory approvals and safety assurance and so forth? A. Mainly regulatory approvals, less safety. Q. Right. So an important person at Bombardier in Derby? A. In Derby, yes. Q. And sorry your colleague A. Suzanne Hudson, so she also worked in the same group for Paul and with me at the time when I was there. Q. I see. And who else? A. The other person I can think of would be Andrew Childs, who also works in that same group. Q. Were these contacts that you declared to HS2? A. No. Q. How regularly were you speaking to these people? A. At first I would say once every three or four months. It varies. … Q. Mr Carter is sharing with you information which says that the liquidated damages on South Western Railway are so high they could bankrupt the company, so presumably what they're doing is switching resource from other projects to that to try and head that off? A. That's my understanding, yes. Q. That’s confidential information of Bombardier, isn't it? A. Potentially, yes. … Q. But he trusted you sufficiently that he was prepared to entrust you with that kind of confidential information when he was an active bidder in this procurement? A. Yes, but as I said, he had no part of the procurement as far as I'm aware. Q. No. So I think we've just checked he's the design assurance and authorisation manager at Bombardier? A. Yes, that sounds correct.”
“Q. When you spoke to Dr Carter, who initiated that contact? A. I don't recall. Q. Did you meet in person? A. I'm not sure, sorry. Q. Did you sometimes speak on the telephone? A. Probably not, no. Q. Did you message - do you do instant messaging, WhatsApp, texting? A. He doesn't do WhatsApp, unfortunately, so I may have sent a text message or I think he may have … there are other times when he may have sent me text messages. Q. Do you socialise with him? A. Sometimes, yes. Q. How often did you speak to him during [the] procurement? A. Every three or four months, maybe every six months. Q. When did you last speak to him? A. Last week. Q. During the procurement, can you recall the last occasion when you spoke to him? A. No I can't. Q. And how do you know he was not involved in the JV's bid? A. Because he had told me. Q. And when did he tell you that? A. On one of the times we spoke. Q. But you have never reported these contacts to – A. No. Q. And you can see now that the 10 golden rules and the policies that we've looked at required that you did? A. They do. I think the contacts I had were all with people who worked for Bombardier Transportation UK, working in Derby. In the contact I did have with them, they were all clear that they had no involvement in the tender and that the work for the tender was not being done from Derby, and that later became apparent to us when we saw the tender. There was no obvious involvement from people working in Derby. Q. So the next person that you told us about was Suzanne Hudson. A. Yes. Q. And she was a senior design assurance engineer at Bombardier until June 2019? A. Yes. Q. And she's now at HS2? A. Yes. … Q. Again, who initiated contact with her? A. It could have been either of us. Q. OK how often do you speak to her? A. Again probably every once in every few months. Q. Did you meet in person? A. Yes I would have done at some points yes. Q. And by telephone? A. Possibly at some points, yes. Q. Did you WhatsApp or – A. Yes, I would have done. I believe though messages with her were examined as part of the look through my messages. I think she's one of the names I gave who may have messages. … Q. Did you socialise with her? A. Yes. Q. During the procurement? A. Yes. Q. And did you report any of that contact to compliance? A. No. Q. When did you last speak to her? A. Probably about two weeks ago. Q. How do you know she was not involved in the JV's bid? A. Because she told me she had no involvement. Q. Right. Then finally Mr Childs. He is a senior design assurance manager at Bombardier yes? A. Yes well I don't know his current role if that's his current role if you have searched then yes… I just knew him as a design assurance engineer. Q. Again, who initiated contact with Mr Childs? Did he speak to you or did you speak to him? A. I don't recall. Q. Did you meet in person? A. I think I will have done at some point yes. Q. And did you have instant messaging contact, WhatsApps? A. Possibly, I'm not sure. Q. Did you socialise with him? A. I think at some point yes. Q. During the procurement? A. Yes. Q. Again, you say that he wasn't involved in the JV's bid. A. Yes. It was quite clear to me that nobody from - none of my former contacts that I met had any involvement with the bid and nobody would - it was clear to me that nobody was going to say anything to me about the bid or was asking me any questions about the bid … it was clear to me that they also understood that they should not talk to me about it.”
“In breach of its obligations of equal treatment and/or transparency and/or proportionality, whether arising under Regulation 36 and/or otherwise, and/or in manifest error, the Defendant permitted, alternatively failed to take appropriate steps to prevent, a key individual involved in the Procurement (including in the evaluation of tenders and decisions relating to disqualification of tenders and the award of the Contract) from maintaining contacts with key individuals employed by Bombardier, an economic operator which participated in the Procurement and which, through its JV with Hitachi, submitted a tender. The same facts giving rise to those breaches also give rise to a specific breach of Regulation 42 of the UCR in that the Defendant failed to prevent and/or identify and/or remedy a conflict of interest arising out of Mr Sterry’s contacts with his former colleagues at Bombardier during the Procurement, including in particular during the evaluation of the tenders submitted.”
“The court may strike out a statement of case if it appears to the court: … (a) that the statement of case discloses no reasonable grounds for bringing or defending the claim; (b) that the statement of case is an abuse of the courts process or is otherwise likely to obstruct the just disposal of the proceedings …”
“the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to the litigation before it, or would bring the administration of justice into disrepute amongst right-thinking people.”
“… where a given matter becomes subject to litigation in a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”
“… Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the Court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the latter proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not.”
“i) Where A has brought an action against B, a later action against B or C may be struck out where the second action is an abuse of process. ii) A later action against B is much more likely to be held to be an abuse of process than a later action against C. iii) The burden of establishing abuse of process is on B or C as the case may be. iv) It is wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. v) The question in every case is whether, applying a broad merits based approach, A’s conduct is in all the circumstances an abuse of process. vi) The court will rarely find that the later action is an abuse of process unless the later action involves unjust harassment or oppression of B or C.”
“The trial is not a dress rehearsal. It is the first and last night of the show.”
“(1) … a utility shall send to each … tenderer a notice communicating its decision to award the contract … (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 tenderer which is to receive the notice, and (ii) the tenderer (aa) to be awarded the contract … (c) the name of the tenderer (i) to be awarded the contract …”
“1. The basis for HS2 Ltd’s decision to award the Contracts to the Successful Tenderer is that the Successful Tenderer submitted the Most Economically Advantageous Tender (MEAT) from the point of view of HS2 Ltd, which is the Tender that offers the lowest Assessed Price of all Tenders remaining in the evaluation after Stage 5. The detailed evaluation criteria and methodology used to identify the lowest Assessed Price are set out in Section 11 - Stage 5: Whole Life Value and Section 12 - Ranking and Tie-Breaker Process of the IfT. 2. All submitted Tenders were evaluated in accordance with the evaluation criteria and methodology set out in the IfT. 3. The outcome of Stages 1 to 4 was based on Tenders meeting the mandatory requirements and Evaluation Thresholds as set out in Sections 7, 8, 9 and 10 of the IfT. The Tenders that met, were deemed to have met or exceeded, all of the relevant mandatory requirements and Evaluation Thresholds for Stages 1 to 4 proceeded to Stage 5: Whole Life Value. In accordance with paragraph 6.2.6 of the IfT, any scores awarded for Stages 1 to 4 are not carried forward to Stage 5. As such, other than in respect of Assessed Price, there are no ‘relative advantages’ of the Successful Tenderer’s Tender against your Tender. 4. However, in the spirit of openness and transparency, HS2 Ltd has confirmed the characteristics of the Successful Tenderer’s Tender and provided your scores alongside the scores of the Successful Tenderer in Appendix A. I further note that you already have access to the evaluation records for your Tender in Stages 2.2 to 4, provided to you via the HS2 eSourcing Portal on2nd June 2021 . 5. In accordance with the requirements of Regulation 102 of the UCR 2016, a standstill period will now be observed before the Contracts are entered into by HS2 Ltd. 6. The standstill period will end at midnight on8th November 2021 .”