Citation: [2021] EWHC 458 (TCC)
Judgment was handed down on 4 March 2021 in the claim arising out of the procurement run by HS2 for the construction partner contract for Old Oak Common Station (one of the two Southern Stations on the HS2 network), a project with a target cost of over £1bn. Bechtel, an unsuccessful bidder, challenged the outcome and process of the procurement, alleging that there were manifest errors in scoring, that there were inadequate records of the moderation and assessment process in breach of the transparency principle and that the winning bid should have been disqualified for being abnormally low due to a lack of resources. Bechtel further alleged that the winning bid and the contract entered into with the winning bidder had been unlawfully modified. The trial on liability and causation took place live in October 2020 before the 2nd Covid lockdown. 18 witness were called over a 3 week period.
The Judge commented on the nature of judicial oversight in procurement cases, which is exercised with restraint. Proceedings are not an appeal against the outcome of the decision and the Court will only interfere with evaluation if there is manifest error.
He rejected substantially all of Bechtel’s arguments and its case failed completely.
The Judge held not only that HS2 made no manifest errors in the evaluation of bids, but also that it made no errors at all. He found that there was no duty of ‘good administration’ on HS2 and that the procedural burden on authorities is balanced and limited by the principle of proportionality. The moderation records did not for example need to be verbatim accounts. There was no basis for any finding that the bid was abnormally low. While the project was slightly different to that tendered for in terms of programme dates, this was entirely to be expected and permitted under the terms of the competition.
Fraser J also found that in the event that Bechtel had been ranked as the winning bidder, it would have been disqualified from the competition by HS2 for failing to remove a fundamental qualification from its bid which would have shifted the financial risk profile of the Contract substantially to the detriment of HS2. Its case therefore also failed on causation.
Sarah Hannaford QC, Simon Taylor and Ben Graff acted for HS2, instructed by Addleshaw Goddard LLP.
