HS2 Ltd pushed through the award of its Old Oak Common Station construction partner contract to avoid programme delays, despite the procurement procedure being “seriously flawed”, according to court documents seen by NCE.
Written closing statements from losing bidder Bechtel say that “the assessment and moderation process was seriously flawed”, but rather than address those issues HS2 Ltd “ran a procedure which seems to have been directed to ensuring that records did not lead to the process being held up in challenges”.
Last month saw the close of evidence in a High Court case, where Bechtel sought damages for what it deems an unfair procurement process.
BBVS – a joint venture between Balfour Beatty Group, Vinci Construction and Systra – was announced as the winner of the contract in February 2019. However, Bechtel subsequently challenged the procurement process and questioned BBVS’ capacity to carry out the job.
Bechtel’s closing statements continue: “Once the defendant had operated its procedure to identify a leading bidder, its concern to keep the project to programme meant that the interests of defending the procurement from any challenge seemed to have prevailed over any interest it might have had in addressing real problems with the apparently leading bid, or in the process which generated that outcome.”
According to the document, during the procurement process HS2 Ltd took an “inconsistent approach” to scoring Bechtel and BBVS’ responses to various questions. These questions included how the tenderer would deliver the project and manage construction works.
Lawyers for Bechtel claim that these scoring inconsistencies are “breaches of the ‘hard-edged’ principle of equal treatment”. Their closing statements add that without the breaches, Bechtel should have scored “at least as well as BBVS” for two questions and higher for another, since the firm’s answers were equally – if not more – detailed.
In addition to this, much of Bechtel’s argument has focused on concerns that BBVS’ tender itself was under-resourced. HS2 Ltd has confirmed that concerns about resources were resolved at a meeting with BBVS on 5 September 2018, prior to the contract award. However no official minutes were made available until five months after the meeting due to confusion regarding who was responsible for this.
In court last month, Michael Bowsher QC – representing Bechtel – questioned these negotiations and emphasised that more resources would require more money than accounted for in the bid.
“We know there is a concern about the resources. All the answers involve saying, ‘well it’s all right – we can find some more resource from somewhere’. Plainly they must be saying we can get you some more resources because Crossrail is coming to an end or we can rely on the supply chain or internally HS2 thinks they can top up their resource,” he said.
“All these answers must logically mean that more resource is going to be made available than was provided for in the bid. If they’re not in the bid they’re going to have to be paid for.”
In response, HS2 argued it is operating a “partnership” contract so BBVS can rely on HS2 resources to get it through peak years.
A verdict is expected in January or February 2021.
Like what you’ve read? To receive New Civil Engineer’s daily and weekly newsletters click here.
