The High Court handed down a decision on 26 July to strike out a claim brought by Turning Point Limited in relation to Norfolk County Council's procurement for an Adult Drug and Alcohol Treatment contract.
The claim was brought on the basis of two main complaints. Firstly, Turning Point argued that it had not been given sufficient TUPE information. It said that breached both the Council's duty of transparency and also its duty of equal treatment and non-discrimination because the lack of TUPE information favoured the incumbent. Secondly, it complained about the Council's decision to exclude its tender because it had put in a 'note' which the Council believed amounted to a qualification. The judge made some interesting comments in relation to both points.
The Council applied to strike out Turning Point's arguments about TUPE information on the basis that they were time barred. The High Court agreed – Turning Point knew what TUPE information it had been provided with when it submitted its tender, and probably knew before that when it did not receive additional information in response to clarification questions it submitted. Its claim came more than 30 days after the date on which it submitted its tender, and the Court found that there was no good reason to extend that time. The judge commented that "a good reason will usually be something which was beyond the control of the given Claimant; it could include significant illness or detention of relevant members of the tendering team"
When submitting its tender, Turning Point added a 'Note' which stated:
"The bid submitted does not include any costs relating to historic local Government pension scheme shortfalls as we have assumed that an indemnity will be provided by Norfolk County Council.
Due to a lack of full and complete TUPE information, it is assumed that the restructure of staffing will be achieved through natural wastage and therefore we have assumed no redundancy costs. If redundancies were to occur, we would wish to enter into further discussions."
The Council concluded that this was a qualification of Turning Point's bid, which had been expressly prohibited by the ITT. It therefore excluded Turning Point's tender, which, it admitted would otherwise have been the successful tender.
The judge agreed that the Note was a qualification, or at the very least a caveat. The requirement not to qualify or caveat the tender was fair, reasonable and common because it is necessary to ensure that comparable tenders are provided. Furthermore, the judge rejected Turning Point's argument that the Council should have sought clarification before rejecting the Tender. This was not a formal or obvious error, such as a transposition, formatting or arithmetical error, which might entitle the authority to go back to the tenderer.