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"Don't go off the rails...." - A case law update (Bechtel Limited V High Speed Two (HS2) Limited)

Publish date: 10/03/2021

A short summary of some of the key "takeaways" for local authorities from the most recent high profile procurement litigation, this time featuring the HS2 project. To help ensure your procurements don't go off the rails....

You may have seen in the press recently another high profile procurement challenge, this time regarding the HS2 project. This was a project with a target cost of over £1billion, so an understandably complex project (and complex procurement). I will not go into the details for that reason (!), but thought it would be useful to share some of the key "takeaways" for contracting authorities. The challenge failed and the "authority" (i.e. HS2) successfully defended the claim.

Whilst not conducted under the PCR, the case reaffirms a few particular points on procurement law more generally. As such, these may be of interest to our members and your local authorities:

Evaluation

- Apply published evaluation methodology and follow your declared process
- Treat all Tenderers in a consistent manner.
- Keep written records of evaluation process.
- Keep full audit trail of changes in scores and reasons for changes.
- Rationale to include all the reasons for the score.
- Devote sufficient time and resources to the evaluation process to make the above possible.

Abnormally low tenders

Rejecting non-compliant bids

RWIND tenderer test

Record keeping


Comment

This is another welcome decision for contracting authorities. Bidders engage in a high risk game, at their own peril, when submitting non-compliant tenders. Particularly so where these represent a material shift in the commercial position. As in the Rail Franchising Litigation, the authority had set out it reserved the right to reject non-complaint bids, it followed that through, and the Court (rightly) saw no reason to intervene. It would have been clear to a RWIND tenderer the potential consequences of submitting a non-compliant bid.

The comments around record keeping are however a reminder for authorities of the importance of this, throughout the procurement process. The comment regarding evaluation training also offers a useful reminder of the importance of having such training, and indeed what the content might cover.


(Note: A full copy of the judgment can be found here: https://www.keatingchambers.com/wp-content/uploads...



Kieran McGaughey

National Lead Officer

Partnership & Procurement Law

Lawyers in Local Government (LLG)

9 March 2021