Judge says serious issue to be tried in procurement case against social landlord but lifts automatic suspension

The Technology and Construction Court has refused to end proceedings in a procurement dispute concerning social landlord Orbit Group, which it has said must make some requested disclosures to claimant Robert Heath Heating (RHH).

In his judgment, Roger Ter Haar KC, sitting as a deputy High Court judge, said RHH had establish there was a serious issue to be tried in its dispute with Orbit over the award of a contract for domestic and commercial heating services in the midlands and east and south-east of England.

RHH said the contract would be worth approximately £4m in profits over seven years.

The proceedings arose from Orbit’s procurement of the services concerned from a company called Aaron, whose parent company is Sureserve to which an Orbit officer named Emma Nicklin moved.

Both were among bidders for the contract that Orbit said would be awarded to the ‘most economically advantageous tender’ based on 40% price and 60% quality.

RHH’s bid failed and its solicitors, Simons Muirhead Burton wrote to Orbit to allege the contract decision notices failed to comply with Regulation 86 of the Public Contracts Regulations 2015 and said the standstill period be extended until at least 10 days after compliant contract decision notices had been sent.

Orbit’s solicitors Trowers & Hamlins said Orbit accepted the lack of compliance and the contract decision notices were withdrawn, and new ones would be issued and a new standstill period observed.

The substituted notices still showed RHH as unsuccessful and the company said Orbit had breached its duties under regulation 89 as well as other obligations including equal treatment, transparency, non-discrimination, non-arbitrariness, proportionality, good administration, procedural fairness, protection of legitimate expectation and a duty to avoid conflicts of interest and collusion between tenderers, and a duty to conduct the procurement process free from manifest error and in accordance with the RHH in August 2024 served a claim on three grounds. It said there was a conflict of interest concerning Ms Nicklin, that Orbit committed manifest errors in scoring some responses to quality questions in RHH's tenders and that Orbit breached its obligation of equal treatment in awarding the maximum score of five to Aaron for its responses to the quality questions, demonstrating the alleged conflict of interest.

Orbit denied the breaches alleged by RHH in the procurement’s conduct and the evaluation of tenders.

Judge Ter Haar said RHH “has established that there is a serious issue to be tried” in respect of both the scoring challenge and the alleged role of Ms Nicklin, and held that damages would be an adequate remedy.

Given this, he said Orbit’s application to lift the suspension on the procurement succeeded.

RHH’s application for disclosures covered all evaluation notes of the individual evaluators, all moderation notes of the individual moderator, all notes and/or minutes of all evaluators' meetings, including moderation meetings, all documents produced for training, guidance or instruction of the evaluators/moderators, including any model answers and all documents relating to any actual or potential conflict of interest.

Mr Ter Haar said all documents in the first four categories were relevant for disclosure except that there were no model answers.

He said: “There were, I am told, 14 evaluators and 1 moderator. Their files and notes are held electronically. It does not seem to me that the volume of documentation will be very substantial.”

The judge added: “In my judgment, this relatively limited disclosure is appropriate at this stage. It will enable [RHH] to consider whether its claim is appropriately pleaded, and, more importantly, to assess whether it is appropriate to proceed with this action at all.”

Documents relating to conflicts of interest should be disclosed only as far as they concerned the alleged role of Ms Nicklin, he said.

Mark Smulian