Hastings & Co (Insolvency) Ltd v The Accountant in Bankruptcy

27 March 2013

[1] This is an application by the Accountant in Bankruptcy (the AiB2012 Regulations) under regulation 47(9) of the Public Contracts (Scotland) Regulations 2012 (the ) for an interim order to bring to an end the prohibition from entering into a framework agreement in relation to the provision of insolvency services.

[2] On 10 May 2012 the AiB published a prior information notice and a contract notice in relation to the insolvency services in the Official Journal. It stated that the procedure to be used was the restricted procedure. On 7 December the AiB invited tenders by issuing an invitation to tender (ITT) for inclusion in a framework agreement for the provision of insolvency services.

[3] The proposed framework agreement, which was scheduled to commence on 1 April 2013, was designed to replace a framework agreement dated 24 March 2009. Under the current framework agreement five organisations have been providing insolvency services to the AiB. They are the pursuer, KPMG, Wylie & Bissett, Armstrong Watson, and MMG.

[4] The pursuer submitted a tender in response to the ITT on 24 January 2013. The tender and competing tenders were analysed by a panel of four scorers whom the AiB established to assess the tenders. On 13 February 2013 the AiB wrote by email to the pursuer to inform it that its tender had not been successful. The AiB informed the pursuer that the winning tenderers were Insolvency Support Services (ISS), KPMG and Wylie & Bissett.

[5] On 13 February 2013 the AiB sent the pursuer a document entitled "Debrief of the Hastings & Co (Insolvency) Ltd Tender" (the debrief document). Solicitors for the pursuer wrote to the AiB on 20 February 2013. They expressed concerns about the AiB's decision to exclude the pursuer from the framework agreement and drew attention to concerns that the pursuer had with the tendering process and the evaluation of its submission. The AiB responded by letter dated 21 February 2013. The pursuer was not satisfied by that response and commenced this action.

[6] In its summons the pursuer mounted ten challenges to the tender process. When the case came to be heard last week, Mr Heriot Currie QC for the pursuer intimated that the pursuer did not insist in four of those challenges.

[7] Before I consider the merits of the six challenges, I have to address two preliminary issues which Ms O'Neill, solicitor advocate, raised. They were, first that the action was not competent because the pursuer had not given prior notice of the action as regulation 47(6) of the 2012 Regulations required and, secondly and in any event, because certain claims were time-barred under regulation 47(7)(b).

The preliminary defences

(i) Failure to give proper notification

[8] Regulation 47(6) so far as relevant provides:

[9] Ms O'Neill submitted that the letter of 20 February from the pursuer's solicitors failed to meet the requirements of regulation 47(6) in two respects. First, it did not give notice of all of the specific breaches of duty which the pursuer later asserted in this action. Secondly, the letter did not inform the AiB of its intention to bring proceedings.

[10] Dealing with the second challenge first, I am satisfied that the letter gave notice of an intention to raise proceedings. In its fourth paragraph the solicitors stated:

"However, on behalf of Hastings, we give notice that any breach of the regulations will cause Hastings to suffer loss and Hastings gives notice to you of its intention to raise an action to preserve its legal position and recover all such sums lost. Hastings reserves in full its rights to make a claim, and initiate legal proceedings."

While the letter concluded in a more emollient tone by stating that Hastings was considering its options and calling on the AiB to reconsider its position, I have no doubt that the letter gave sufficient notice of an intention to bring proceedings.

[11] To my mind the regulation contains a notification requirement for a practical reason and not as a matter of form. It is to allow the contracting authority to re-consider its position in response to a focused challenge or challenges to its decision and a notification of an intention to raise proceedings absent that reconsideration. In the letter of 21 February 2013 Mr Charles Keegan, the Executive Director of Corporate Services of the AiB, responded in detail to the solicitors' letter and concluded that the AiB was satisfied that there had been no breach of the 2012 Regulations. When he did so I think he can have had no doubt that he had received a notification of an intention to bring legal proceedings.

[12] What is more problematic for the pursuer is the first challenge, namely that the pursuer is now barred from the raising in these proceedings of challenges of which it gave no notice in the solicitors' letter.

[13] The principal challenge, which Mr Currie characterised as a root and branch attack on the AiB's approach to the procurement exercise, was that the process had been deliberately "weighted ... against small and medium sized enterprises (SMEs). The letter then sought to particularise that charge and focused on questions 4-7 of the ITT. While the letter did not state specifically in its discussion of each of those questions that its criticism amounted to a breach of the 2012 Regulations, a fair reading of the letter leaves no doubt that the charge of discrimination against SMEs underpinned the discussion of each question. The criticism of the approach to question 7 also raised an issue of undisclosed or irrelevant criteria. I therefore do not accept Ms O'Neill's submission that the comments on the individual questions were not allegations of breaches of the 2012 Regulations.

[14] But the pursuer did not criticise the AiB's approach to questions 1 and 3 of the ITT, which concerned "continuous improvements" and "customer services". In my opinion, having failed to raise any issue on the wording of those questions and the assessment of the tenderers' answers to them in the regulation 47(6) letter, the pursuer is barred by that regulation from challenging those matters in this action.

[15] An economic operator may develop its arguments in support of a particular notified challenge in the course of a legal action. But it would defeat the practical purpose of the notification requirements if it were allowed to open up new fronts on raising legal proceedings. That would enable an economic operator to mount challenges to parts of the process, which it had not given the contracting authority the opportunity to reconsider. Without such notice, the possibility of avoiding expensive litigation is lost. In my view, the policy of the legislation is that the economic operator has to particularise its complaints when the effect of any legal action that follows is to bring into operation the regulation 47(9) prohibition. I consider that this approach is consistent with the guidance which the courts have given in Luck v London Borough of Tower Hamlets [2003] 2 CMLR 12, Rix LJ at paras 30-31 and 42, Gillen v Inverclyde Council 2010 SLT 513, Lord Woolman at para 19, and Clinical Solutions International Ltd v NHS 24 and Capgemini UK plc [2012] CSOH 10, at paras 12 and 13.

(ii) Time bar

[16] The relevant time restriction in this case is contained in regulation 47(7)(b) which provides:

[17] Ms O'Neill submitted that in so far as the pursuer criticised the ITT as lacking in transparency, time ran for the date on which it received that document in December 2012, because on reading that document it ought to have known of the grounds on which it now founded. She referred to Uniplex (UK) Ltd v NHS Business Services Authority Clinical SolutionsTraffic Signs and Equipment Ltd v Department for Regional Development [2010] 2 CMLR 1225 at para 35; (above) at paras 16 and 17; and [2010] NIQB 138, Weatherup J at paras 21 and 22. She submitted that the pursuer's challenges to questions 1, 3 and 6 were time barred.

[18] Mr Currie submitted that the pursuer was able to discover the lack of transparency of the impugned questions only when it received the debrief document, which showed that the AiB had adopted an interpretation that differed from its understanding.

[19] I am satisfied that the pursuer's criticisms of questions 1 and 3 could not have been formulated before it saw the debrief document which disclosed how the AiB interpreted the questions. As I discuss below, the pursuer considered the meaning of question 1 and reached a view on what it meant. The criticism of question 3 on the ground of lack of transparency, which is misconceived, arises from a misreading of the debrief document. Part of the challenge to question 6 involves an allegation that the ITT failed to disclose the weight attached to stated sub-criteria. As I discuss below, I do not think that the criticism is well founded because the relevant list was not a list of criteria or sub-criteria. Arguably, if there had been substance in that challenge, it should have been raised shortly after the pursuer received the ITT. But the other criticisms of question 6 arose out of what was said in the debrief document.

[20] I am therefore not persuaded that Ms O'Neill has demonstrated that those challenges are time-barred or that a defence of time bar is likely to succeed.

[21] I therefore turn to consider the merits of the challenges, of which the pursuer gave notice in its letter of 20 February 2013, before commenting on the challenges that I have excluded in para [14] above, in case a higher court were to take a different view of their exclusion.

The merits of the challenges
(iii) The Law

[22] Counsel agreed that there was no dispute as to the applicable law. They were content to use as a workable statement of the relevant principles my opinion in Healthcare at Home Ltd v The Common Services Agency [2012] CSOH 75, and in particular paras [10] to [20] and [22]. But I must qualify the expanded discussion (in paras [23] to [28] of my opinion in that case) of the requirement in the case law of the European Court that the award criteria must be formulated in such a way as to allow all reasonably well-informed and normally diligent tenderers to interpret them in the same way.

[23] On the first day of the hearing in this case, the Second Division issued its opinion in the reclaiming motion from my opinion in the Healthcare at Home ([2013] CSIH 22). While the judges of the Second Division adhered to my interlocutor, they expressed doubts about the formulation that looks to what was reasonably foreseeable by the hypothetical reasonably well-informed tenderer. The Second Division understandably expressed concerns about the use in this context of a "reasonably foreseeable" formulation, which is drawn from and more familiar in the law of contract and delict.

[24] In the light of the Second Division's guidance, I would restate the approach thus. The test is a purely objective one. The court asks itself whether the hypothetical reasonably well-informed and normally diligent tenderer would have expected that a particular matter was required by and included within a criterion. If that hypothetical tenderer would see that there was ambiguity in the criterion or criteria, they would not be sufficiently transparent.

[25] In relation to the contracting authority's duty to give reasons for its decision, I refer to what I said in para [22] of my opinion in Healthcare at Home. In regulation 32(2) of the 2012 Regulations the contracting authority must give (a) a summary of the reasons why the economic operator was unsuccessful and (b) the characteristics and relative advantages of the successful tender. In discussion Ms O'Neill explained that she was aware of at least three approaches that contracting authorities adopted to meet this obligation. One was that adopted in this case, in which the contracting authority took comments from the individual scorers' score sheets that showed points in favour or against particular tenders and recorded them in the notice. Another is to compose a narrative of the reasons. A third is to disclose the scorers' evaluation sheets to the tenderers. It seems to me that the first method is legitimate if it accurately records the relevant comments. It inevitably may result in some apparent contradictions as individual scorers will often have differing views on the quality of a particular tender. Those differences are ironed out by the averaging of the marks awarded by the scorers to each question when determining a tenderer's score on that question.

[26] I accept Ms O'Neill's submission that the law is clear on the nature of the court's review of the contracting authority's decision. The court will interfere with the decision of the contracting authority only if it is manifestly wrong or if the process has been unfair: Lion Apparel Systems Ltd v Firebuy Ltd By Development Ltd v Covent Garden Market Authority Healthcare at Home [2007] EWHC 2179 (Ch), Morgan J at paras 37-38 and 93; [2012] EWHC 2546 (TCC), Coulson J at para 8; at para 20.

(iv) The surviving challenges

[27] Question 4 - Service delivery:

The question asked the tenderers to provide an organisational structure for providing the service to the AiB, demonstrating a management hierarchy and the key individuals responsible for managing the service. It asked for CVs of the named individuals involved in managing the service.

[28] The pursuer in its response provided a table listing its personnel in a hierarchy but did not reveal the organisation of line management. It disclosed that there were three key personnel, being two insolvency practitioners and one senior manager, and fourteen other staff, whose functions were listed. It provided its training policy in Appendix 4 and also a CPD plan for one of its insolvency practitioners. In the debrief document the comments critical of the tender included a lack of detail of proposals for new/ongoing professional development, that the organisational chart did not give a clear picture of the organisation, that there was no skills matrix and no reference to staff appraisal, that there was a lack of detail on the process of monitoring performance and that CVs were provided for only three staff.

[29] The comments on the merits of successful bidders included such things as comprehensive organisational structural plans and CVs and comprehensive training programmes.

[30] Mr Currie submitted that the pursuer had shown the hierarchy of its organisation and that it had set out its training policy in appendix 4 of its tender. He suggested that the process discriminated in favour of large organisations and involved the use of undisclosed criteria. It was an example of the pursuer's overarching complaint of discrimination against SMEs.

[31] I am not persuaded that there is any manifest error in the assessment. The scorers were entitled to comment that the pursuer's presentation of its staff hierarchy did not reveal line management responsibilities. They were entitled to compare the detail of the presentation of professional development in the different tenders. The court is not in a position to make judgments on the relative merits of tenders in terms of detail. While larger organisations were able to disclose more complex and detailed arrangements than an SME such as the pursuer, I am not persuaded that it amounts to discrimination to mark up responses which gave more detail on matters directly relevant to the provision of the requested service. Nor do I accept that the debrief document discloses previously undisclosed criteria. In my view the scorers' comments relate to the methods by which tenderers responded to the disclosed criteria.

[32] Question 5 - Training of AiB staff:

This question asked tenderers to set out their ability and commitment to support the training and development of AiB staff by stating specifically the nature and level of investment in such training that they would make.

[33] The pursuer offered in-house training, mentoring and secondments of staff to the AiB. It set out in appendix 5 of its tender proposals for training AiB staff in the year to 31 March 2014 and stated that it would offer both the monthly and additional programmes annually.

[34] In the debrief document the scorers' comments on the pursuer's tender included that there was not as much depth of information as others and no detail of actual investment. In the feedback on the merits of successful bidders the comments included praise for structured programmes of training, the high level of training hours committed, the range of support offered, and the willingness of one tenderer to discuss with the AiB its training needs.

[35] The pursuer's criticisms were essentially the same as those made against the scoring of question 4: the AiB's approach to the marking of the tenders involved undisclosed criteria and also discrimination against SMEs as only larger organisations could offer some of the services that were praised in the comments on the successful bidders. Mr Currie also pointed out that the criticism that the pursuer had not given detail of its actual investment was simply wrong as appendix 5 of the tender gave that detail. He also criticised the giving of credit to tenderers which offered training in such matters as audit and taxation, which were not a necessary component of the insolvency service.

[36] In my view there is an apparent error in the scorer's comment that the pursuer had not given detail of its investment. Ms O'Neill did not suggest otherwise. I am not persuaded that it was an error to give bidders credit for offering training on audit and taxation. I recognise that the AiB staff could benefit from some knowledge of those matters in handling insolvency cases. But, as Ms Hastings stated in her affidavit, the pursuer offered to meet the AiB and adjust the training offered to its needs. Otherwise my approach is the same as in relation to question 4: I do not see any undisclosed criteria or illegal discrimination against SMEs.

[37] Question 6 - Sustainability:

This question stated that the AiB supported the Scottish Government's objectives on sustainability. It listed those objectives that it had adopted into its organisational policies and invited each tenderer to demonstrate how its organisation supported those objectives. The ITT gave links to websites that contained details of the Scottish Ministers' policies.

[38] In its response the pursuer listed ten initiatives which promoted responsible environmental practices such as minimising the use of paper, reducing the need to travel and employing local people. It also set out in appendix 6 its environmental policy and sustainability action plan. In the debrief document the pursuer's response was criticised for a lack of detail. The comments on successful bidders praised specific initiatives, including supporting youth employment through apprenticeships, school mentoring support and team-building charity events.

[39] The pursuer criticised this question and its scoring both because it discriminated in favour of large organisations that could do more and because the question did not disclose the weight to be attached to the listed sub-criteria. It observed that one scorer had stated that it had "a good understanding of the requirements" and another had described the tender as "an acceptable response", yet the pursuer's answer had been scored last of the four listed tenderers. The AiB had also taken into account matters that were irrelevant to sustainability.

[40] I do not doubt that large organisations can offer to undertake more than smaller organisations. But that does not of itself make a criterion discriminatory. I see no basis for the assertion that the list of the sustainability objectives were criteria. They were simply a list of those objectives. The method of recording individual scorers' comments and averaging their scores may create a mismatch between a comment and a score without demonstrating any inconsistency. In any event, the pursuer's quotations from the scorers' comments were incomplete as each scorer went on to criticise the pursuer's answer for lacking depth or detail. I share the pursuer's puzzlement as to the relevance to the framework agreement of one scorer's favourable comment on a tenderer's offer to provide team-building charity events.

[41] Question 7 - Understanding our requirements:

This question asked a tenderer to outline its understanding of how the framework would operate in order to demonstrate its commitment to the AiB's requirements. Among the matters listed to be covered by the response was "maximising income for creditors".

[42] The pursuer's only challenge to the question and the scoring was that it had been criticised for not giving specifics about maximising creditor income in practical terms. This, it said, was an undisclosed criterion as the question had not asked for solutions. I am satisfied that there is no substance in this challenge. The question asked for a demonstration of commitment to the requirements. The hypothetical tenderer could expect that the AiB would see as relevant to the answer some indication of how creditors' income could be enhanced.

A cumulo approach

[43] Mr Currie urged me to look at the complaints cumulatively as they supported the charge of discrimination against SMEs. I will do so.

[44] I am not persuaded that there is any basis for a general rule that an invitation to tender is invalidated because it is easier for larger enterprises to meet the tender requirements than SMEs. In Concordia Bus Finland Oy Ab v Helsingin Kaupunki [2003]3 CMLR 20 the contracting authority included in its assessment of the economically most advantageous tender criteria connected with the protection of the environment. The European Court held that that was consistent with the principle of equal treatment, even though only a few undertakings would be able to make an offer which would satisfy those criteria (the Advocate General at paras 91-93 and the Court at paras 59-64 and 85-86).

[45] But a contracting authority may risk breaching the equal treatment principle if it adopts criteria which are not sufficiently linked to the subject matter of the contract and which favour one type or size of economic operator over another. It will also do so if it takes into account in its scoring of tenders matters beyond the disclosed criteria that breach the principle of equal treatment.

[46] In this case, while there are stray comments from individual scorers that may suggest that they were on occasion giving credit for things that were at best loosely linked to the subject matter of the contract, I do not detect a clear case of discrimination against SMEs in relation to such matters. On a prima facie assessment I do not infer that those matters materially reduced the pursuer's score or significantly inflated the scores of the successful tenderers.

[47] As Ms O'Neill pointed out, the ITT sought to encourage economic operators of different sizes to compete for inclusion in the framework agreement (a) by fixing a maximum allocation to one provider of 60% of cases in each regional lot and (b) by providing that there would be a minimum of three providers in each lot and accordingly that there could be more.

(v) The excluded challenges

[48] As I have rejected the challenges to questions 1 and 3 on the ground that they were not raised in the pre-action notification, I deal with them more briefly.

[49] Question 1, which was concerned with continuous improvement of AiB's processes, asked tenderers to provide a commitment to being actively involved in continually improving the processes of working with the AiB. It stated:

"You should demonstrate how you intend to fulfil this commitment with suggestions for improvement to the current Operating Manual, detailing proposals for collaborative working to achieve mutual benefits and positive change in processes."

In the debrief document one scorer criticised the pursuer for focusing only on the operating manual and not putting forward ideas outwith sequestration processes or collaborative working. Ms Hastings in her affidavit explained that she had read the question as calling for a focus on the operating manual. That had surprised her and she had shown the question to the pursuer's managing director, who confirmed her interpretation. I do not doubt that she did so. But I do not think that the hypothetical tenderer would have read the question as the pursuer did. The quoted sentence needs to be read in the context of the ITT as a whole, including its discussion of the operating manual, and in particular the wording of the whole question. In context I do not think that the question was ambiguous but I recognise that the sentence, considered by itself, could have been worded more clearly in order to show that suggestions of improvements to the operating manual were only part of the required answer.

[50] Question 3 concerned customer services. Tenderers were asked to demonstrate how their organisation would "work with AiB and AiB customers/stakeholders to ensure they receive a consistently high standard of service." Among the comments recorded in the debrief document were criticisms of the pursuer for not providing evidence in support of its statements and for not providing detail of who the stakeholders were or how it would work with them. Comments on the winning bidders included praise for providing representation on a number of stakeholder boards, a proposal to provide a separate quality management section dedicated to the AiB and a dedicated telephone line.

[51] The pursuer submitted that it had provided ample evidence of its customer service and that it considered the ITT to be unclear as it did not ask who the pursuer's stakeholders were. I am surprised by the criticism of the pursuer's tender for not providing evidence in support of its statements as it appears to me to have a considerable amount of evidence in relation to its customer care service, including an independent audit, in appendix 3. But I think that the pursuer has misunderstood the debrief document if it considers that the scorer was looking for disclosure of the pursuer's stakeholders. Further, I do not see any basis for criticising the AiB for failing to specify who its stakeholders were. The recipients of the ITT were all insolvency practitioners who would be well aware of the parties interested in the work of the AiB. I consider that scorers were entitled to give credit to the winning bidders for providing further customer services although it was difficult for a small business to do so. The matter was directly linked to the subject matter of the contract and the contracting authority was entitled to take into account such additional benefits without offending the principle of equal treatment. See paras [44] and [45] above.

[52] Even if I took into account the excluded challenges, I consider that the pursuer has only a weak prima facie case of any infringement of the Regulations.

The test for an interim order

[53] Parties agreed that I should consider the strength of the pursuer's prima facie case and also the balance of convenience. Regulation 48(2) instructs how the court should assess that balance. It provides that the court may decide not to grant an interim order when the negative consequences of such an order are likely to outweigh the benefits, having regard to the considerations:

[54] There is now considerable case law in this jurisdiction on the court's approach to such orders (Elekta Ltd v The Common Services Agency Lord Glennie at para 26; Shetland Line (1984) Ltd v The Scottish MinistersClinical Solutions International Ltd Amey AG Ltd v The Scottish Ministers2011 SLT 815, [2012] CSOH 99, Lord Malcolm at paras 11 and 12; and my decisions in at paras 7 and 8 and [2012] CSOH 181 at para 36 f).

[55] I am satisfied that it is appropriate to make the order under regulation 47(9) bringing to an end the prohibition. In reaching that view I have had regard to the following considerations. First, I consider that the pursuer has at best a weak prima facie case of infringement of the 2012 Regulations. Secondly, I doubt whether the criticisms, if made out, would demonstrate that but for them, the pursuer would have been one of the successful bidders. The pursuer was ranked fifth in the scoring of the tenderers and the quality criteria made up only 40% of the overall score while price accounted for 60%.

[56] Thirdly, I am satisfied that a significant delay in the introduction of the new framework would cause serious loss to at least two of the three successful bidders and that they would have no recourse against the pursuer if its challenge ultimately failed. I have had regard to the affidavit of Ms Christine Convy of ISS, which disclosed that it is an SME and its investment to enable it to provide services under the framework agreement. I have also had regard to Mr Cormack's submissions on behalf of Wylie & Bissett, another SME, and in particular its mobilisation to perform its tasks under the framework agreement, including the recruitment of new staff. [57] Fourthly, the public interest points towards the avoidance of delay in the introduction of the new framework agreement which is expected to yield some savings of public money as well as an improved service. While the public interest in avoiding delay is not as strong as it often is in the provision of vital healthcare services, and I think that the AiB could make adequate arrangements for the interim provision of services, the public interest remains a relevant factor especially where it is not alleged that there has been any fundamental breach of the Regulations and its governing principles.

[58] Considerations that point towards the maintenance in place of the prohibition are, first, the fact that a challenge has been made to the decision which must be effectively reviewed, and, secondly, the damage which the pursuer's business would suffer if it were to lose the work but ultimately succeed in its challenge. I recognise that, if the pursuer were ultimately held entitled to claim damages for breach of the regulations, it might be difficult to value the chance of succeeding as a bidder. It is never easy to place a value on a chance and it is rendered more difficult in this case in which the framework agreement involves several participating economic operators. But the remedy must be proportionate to the gravity of any breach of the regulations.

[59] The public interest is unquestionably part of the balance of convenience. In so far as it is to be considered separately, the need for certainty in the procurement process and the avoidance of delay when a challenge does not have reasonable prospects of success are factors which weigh against the continuance of the prohibition.

[60] I am satisfied that the factors pointing towards the grant of the interim order significantly outweigh those pointing towards its refusal.

Conclusion

[61] I therefore grant the motion and pronounce an interim order under regulation 47(9) of the 2012 Regulations bringing to an end the prohibition on the contracting authority from entering into the proposed framework agreement.