Citation: [2018] EWHC 831 (TCC)
In 2013 TfL entered into framework agreements for the maintenance of roads with four different contractors, including CVU. The Framework Agreement with CVU was entered into on 15 April 2013 and provided for conditions, rates, and prices for the carrying out of various highway works across London. This agreement was to govern call off contracts for works between CVU and various possible employers. On 15 April 2013 CVU and TfL entered into the Call Off Contract for works to the highway network for which TfL is responsible.
Where works will restrict the width of a carriageway, permission is required from the relevant highways authority. In this case, a scheme had been set up by TfL known as the London Permit Scheme (LoPS) to deal with requests for permission. It is a criminal offence for a works promoter to carry out works to the highways without a permit and conditions may be imposed on the grant of any given permit. Different procedures must be complied with depending on whether the works might result in a significant and adverse impact on the Transport for London Road Network (TLRN).
In this case CVU sought a declaration that, in a case where conditions were imposed by LoPS, they were not restricted to pricing the works under the Schedule of Rates in the Framework Agreement. CVU argued that they were entitled to submit a quotation outside of the Schedule of Rates to take account of the extra costs that would be incurred as a result of the restriction. This was resisted by TfL who argued that the Schedule of Rates was deemed to include the value of compliance with restrictions imposed by LoPS.
O’Farrell J refused to grant the declaration sought by CVU. The judge accepted TfL’s argument that the rates were deemed to include the cost of any restrictions imposed. The judge held that TfL’s interpretation was in accordance with the natural and plain meaning of the words and made commercial sense. In particular the judge held that any risk that contractors would include a premium to take account of the uncertainties inherent in the permit scheme was offset by the competitive tendering process which had been held.
Adrian Williamson QC acted for Transport for London.
