London borough defeats procurement challenge over £177m repairs contract

A London borough has successfully defended a High Court procurement challenge over the award of a contract for maintenance and repairs.

In Willmott Dixon Partnership Ltd V London Borough of Hammersmith and Fulham [2014] EWHC 3191 (TCC) the claimant had carried out repairs, maintenance and voids services for the council from August 2005 to October 2013.

However, it lost out when Hammersmith & Fulham decided to award the new contract – reportedly worth £177m – to Mitie.

Willmott Dixon had submitted a tender for the contract but was unsuccessful. It launched proceedings against the council for breaches of statutory duty under the Public Contracts Regulations 2006 (as amended), breaches of principles of EU law and breaches of an implied contract.

Via a consent order made in September 2013 the claimant agreed to the ending of the requirement that the council refrain from entering into the contract.

Willmott Dixon raised 13 issues in the dispute. These included that the quality evaluators evaluated the tender by reference to criteria which were not aimed at identifying the most economically advantageous tender, and evaluated the tender by reference to award criteria which were not specified, or at least not specified in a clear, precise and unequivocal manner, in the ITT documents.

The claimant also suggested that the quality evaluators failed to treat the economic operators in an equal and non-discriminatory way when they scored the tenders. In particular, Mitie had been awarded a higher score when the claimant’s submissions were objectively as good or better, or the same score when Willmott Dixon’s submissions were better.

The claimant also sought to argue that: the award criteria were insufficiently sensitive to distinguish between different qualities of submissions; there was a failure to verify Mitie’s compliance with the award criteria; and the council breached an implied contract.

However, Mr Recorder Acton Davis QC rejected the claim in full after a hearing on liability.

A spokesman for Hammersmith & Fulham said: "We welcome the judgment of the High Court, which enables us to draw a line under these proceedings. We continue to focus on providing the highest quality of services to all our residents."

Nigel Giffin QC of 11KBW and Joseph Dalby of 4-5 Gray’s Inn Square acted as counsel for Hammersmith & Fulham, instructed by the authority’s Director of Law, Tasnim Shawkat.