Amey set for another legal showdown

Dominic Browne

Amey is set for another showdown with a major council after partially winning an early round in a legal battle with West Sussex County Council.

Amey Highways Ltd had asked for the High Court for a summary judgement in the case, after West Sussex awarded its Highways Term Service Contract 2018-2028 to Ringway. 

While a summary judgement was not granted, the council failed to have the case thrown out either on the grounds that Amey ran out of time to take legal action, or that Amey's case had no chance of success.

This has left the two parties set for further legal action if no resolution can be found. The news comes just months after lost another battle with Birmingham City Council.

The judgement states that Amey’s case 'may be subdivided into two broad categories of attack':

'i) Amey alleges that instructions given by the Council on 19 January and/or 2 February 2018 about how it should structure its presentation of certain staff costs were unlawful. It is not in dispute that implementation of the instructions had the effect of reducing the score that Amey’s tender would receive in respect of price. 

ii) Amey alleges manifest error in the scoring of two criteria and that it should have been awarded a higher score for those criteria.'

The way the tender and its costings was outlined, Justice Stuart-Smith states, meant local office overheads 'also fell to be included in either Total Revenue Costs or Total Capital Costs for any of years 1-7, the structure of the ITT’s [Invitation to Tender] costing model would mean that such costs were brought into the tenderer’s submitted pricing twice'.

'There was therefore an incentive for tenderers not to include sums appearing in their Total Costs in the LMO as well. On the documentary evidence it appears that Amey was conscious of the possibility that other tenderers might gain an unfair advantage by wrongly excluding costs from LMO that should have been included there'

Amey alleges it received instructions from the council relating to this situation - specifically relating to the equivalent of 4.25 full time employees that Amey asserted would not come at the council's expense - that were unlawful. Related to this, Amey alleges it should have scored higher on its scorecards.

Mr Justice Stuart-Smith ruled: 'I am not convinced that this is one of those relatively rare cases where the claim can be seen to be overwhelmingly strong or weak. I have not been addressed and am not in a position to make a reliable estimate of the strength or weakness of Amey’s claim or the Council’s proposed substantive defence save to say that neither appears to be fanciful on the materials and submissions that have been available and made at the present hearing.' 

Determination of the issues requires 'close consideration of the factual evidence that is beyond the scope of a strike out/summary judgement application', the ruling states. 

The procurement process was subject to a competitive dialogue process, involving three stages: first, an Invitation to Submit Outline Solutions; second, a Competitive Dialogue and; third, a Call for Final Tenders.

The Invitation to Tender divided the tender submission into two sections, quality and cost. The quality submission was worth 40% of the overall score with the cost submission being worth 60%.

Highways approached Amey and West Sussex County Council for comment.

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