Judge throws out waste contract challenge

31 March 2010

31 March 2010 | Paul Snell

The High Court has dismissed a challenge from an unsuccessful bidder for work awarded by the Greater Manchester Waste Disposal Authority (GMWDA).

SITA UK challenged the award of the PFI contract to a rival bidder, claiming a breach of procurement rules and alleging significant changes were made to the deal following the award. The waste management firm believed this entitled it to submit a revised bid, and also pointed out that its initial bid was 15 per cent cheaper than that of its competitor.

But Mr Justice Mann said SITA’s challenge was not brought before the court in time, and he could see “no good reason to exercise any discretion to extend it”, so dismissed the case.

It follows a recent decision by the European Court of Justice in a case between Uniplex and the NHS Business Services Authority, which confirmed suppliers have three months from the date they learn of an infringement to bring a challenge under EU procurement rules.

GMWDA argued SITA should have known of any alleged infringements by 8 April 2009 and should have therefore commenced any proceedings against the authority by 7 July 2009. Despite lengthy correspondence between the two organisations, SITA did not issue proceedings against GMWDA until 27 August. “This is not impressive conduct in these circumstances,” said the judgment.

The case hinged upon exactly when SITA had sufficient knowledge of any potential breach to launch a challenge. The judge said the waste company had felt able to threaten proceedings and was well aware of the time limitations in bringing a challenge. “None of this smacks of promptness at all. It smacks of casualness or a failure to appreciate the real urgency of the situation,” he added.

GMWDA clerk Charlie Parker was pleased with the result. “It is good news for the authority,” he said in a statement. “We had a duty to robustly defend any proceedings in order to protect the public purse and recover the costs incurred.”

SITA has confirmed its intention to appeal. In a statement it said it believed the GMWDA had not procured the "most economically advantageous tender", as it indicated it would at the start of the procurement.

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