[2012] CSOH 181



in the cause







Pursuer: R Dunlop QC; Pinsent Masons LLP

Defender: O'Neill, Solicitor Advocate; SGLD

Interested parties: (BEAR) B Haywood, Solicitor Advocate; DWF LLP

(Scotland TranServ) S Smith QC; MacRoberts LLP

27 November 2012

[1] This is an application by the Scottish Ministers under regulation 47(10) of the Public Contracts (Scotland) Regulations 2006 ("the 2006 Regulations") for an interim order to bring to an end the prohibition in that regulation against their entering into contracts for the provision of services in relation to trunk roads in Scotland in the circumstances set out below.

[2] In November 2010 the Scottish Ministers acting through their agents, Transport Scotland, advertised two separate contracts for the provision of integrated network management, routine, winter and emergency maintenance and renewal and improvement works on trunk roads within the south west of Scotland and the north west of Scotland respectively. The contracts were for an initial period of five years with the option of extension for a further five years.

[3] The Scottish Ministers adopted the competitive dialogue procedure and it was envisaged that four economic operators would be invited to participate in the tender process. The tendering process provided for the evaluation of tenders against pre-determined criteria in order to identify the most economically advantageous tender.

[4] The proposed contract involved core operations and other operations. The core operations were tasks of management and maintenance which the contractor had to carry out without specific orders for work. The other operations were tasks which the contractor would perform only if instructed to do so. Accordingly the total income to be earned from the five-year contract could only be estimated and tenders would be assessed by reference to the rates for work which they submitted.

[5] In February 2012 the Scottish Ministers issued a document entitled "Invitation to Submit Final Tender - Instructions to Tenderers" ("ITSFT") which set out the scope of the proposed contract in each case. In section 6, which set out the final tender submission requirements, it required participants to complete all tender rate entries and to have a price or rate entered against each individual item. The minimum value to be assigned to an item was £0.01. It also provided that for items where the unit was percentage, a percentage value which was positive, negative or zero should be inserted. In section 7.4 the ITSFT explained that the financial assessment in the tender evaluation would include an assessment of the Comparative Cost of Tender ("CCT") which would be calculated from the priced tables of the Tender Rate Entry Database ("TRED") which participants submitted. It stated that the marking of the financial submission would include the giving of 100 marks to the lowest CCT in the participants' financial submissions. The final score which was used to ascertain the most economically advantageous final tender submission was an aggregation of each participant's quality score and price scores, with quality weighted at 10% and price at 90%.

[6] Amey and three other economic operators submitted tenders. On 27 April 2012 the Scottish Ministers wrote to Amey to explain that their evaluation of its financial submission had led them to consider that the offer was abnormally low as it was not economically viable and sustainable. They stated that this presented them with unacceptable financial, operational and reputational risks in fulfilling their statutory duties for the management and maintenance of trunk roads in Scotland. They also considered that Amey's offer had manipulated the TRED database so that they did not have confidence in the genuineness of its priced schedule of rates and prices. The Scottish Ministers explained their concerns in some detail. They explained that the contract notice had estimated the annual contract value as being not less than £27.5 million with a five-year contract value being £137.5 million. Amey's CCT of £26.99 million was 80% below that estimated contract value and very significantly lower than the CCTs of the other final tenders.

[7] The Scottish Ministers then, in accordance with the requirements of sub-paragraph (a) of regulation 30(6) of the 2006 Regulations which I set out below, identified the parts of Amey's offer which they thought contributed to the offer being abnormally low and asked for an explanation of those items. In relation to the core operations the Scottish Ministers pointed out that Amey had priced 84 of the 88 items at one penny and two at two pennies, which bore no relationship to the plant, materials, facilities and personnel which would be needed to perform those operations. They suggested that the one penny rates affected the operation of the proposed contract as it meant that they could only withhold £0.01 per month for consistent poor delivery in undertaking safety inspections. That was relevant to the genuineness of the bid. In relation to the other operations the Scottish Ministers noted that 64% of the 2,225 priced items were stated at the rate of one penny. They called into question the economic viability and sustainability of such rates and expressed concern that the rates would not give an incentive to provide cost effective design solutions. That went to the genuineness of the bid. They expressed concern about Amey's percentage rate in relation to road markings, which was minus 1,622,832%, which reduced Amey's CCT by more than £15 million and meant that Amey would have to pay them £162 for every metre of road marking which it carried out. This caused concerns regarding the economic viability and sustainability of the rate.

[8] Amey replied in a detailed letter dated 9 May 2012. In short it explained that it had taken a holistic approach to the tender and the delivery of the services, treating the contract as a whole. In effect its assessment of the likely extent of the operations, based on its experience in the south west unit, had enabled it to quote rates which involved cross-subsidies and real efficiency savings. Its assessment was based on a total average turnover of about £30 million per year. It was aware that there was no guarantee of the anticipated level of works over the five-year period and was prepared to take the commercial risk. It pointed out that it had provided a £2 million performance bond and a parent company guarantee which included an undertaking to achieve performance of the contract. Its negative rate for road marking conformed to the guidance in the ITSFT. It was confident that its pricing was genuine, viable and sustainable.

[9] The Scottish Ministers were not satisfied by this response and wrote on 21 May to reiterate their concerns. They pointed out among other things that while Amey had adopted "a holistic approach to the tender" the core operations would be the only guaranteed revenue from the contract. They pointed out that there was a difference of about £123 million between Amey's CCT and its estimate of the likely turnover. While Amey had accepted low levels of return on core operations to gain competitive advantage, it had not provided evidence to demonstrate that the rates were economically viable and sustainable. They pointed out that Amey had priced most of its incident response operations and incidents involving damage to Crown property at more than £10,000 per incident which would expose them to budgetary uncertainty. The Scottish Ministers invited Amey to respond to ten questions by providing comprehensive pricing evidence to support their assertions.

[10] On 28 May 2012 Amey responded in detail, repeating its holistic approach and providing price and other information in appendices which have been redacted when produced to the court for reasons of commercial confidentiality. It expressed confidence in producing economies of scale through its national footprint in the United Kingdom and asserted the viability and sustainability of its financial submission.

[11] The Scottish Ministers replied by letter dated 1 June 2012 and stated that Amey had not provided sufficient evidence. They asked further questions about, among others, the assumptions behind the pricing of the incident response operations and damage to Crown property and the £10,000 threshold value. Amey responded by letter dated 8 June 2012. By letter dated 4 July 2012 the Scottish Ministers stated that they were not satisfied that their concerns were unfounded and considered that the offer was abnormally low. In Annex 1 they set out their concerns and in Annex 2 their assessment of Amey's offer and the evidence that it subsequently provided. They repeated their view that the offer carried significant unacceptable risks for them, that it was not economically viable or sustainable, and that it was not genuine. They required Amey to confirm that its tender did not contain errors of fact and that it stood by its subsequent submissions. Among the matters included in the letter was their assessment of Amey's presentation in its offer in relation to incident response operations and damage to Crown property (paras 2.5 and 2.6 of Annex 2 and Annex 5).

[12] On 17 July 2012 Amey responded in detail to express its disagreement with the assessment. It sought to explain to the Scottish Ministers that Annex 5 was inaccurate as it contained arithmetic and other errors which suggested a cost of £287 million when Amey calculated the cost at £3 million. It reiterated that its offer was not the CCT amount.

[13] On 3 October 2012 the Scottish Ministers sent a letter to Amey to give notice that its offer had been rejected as being abnormally low. The Scottish Ministers stated:

"4. In reaching this decision we have also relied upon paragraphs 2.1 - 2.4 and paragraph 2.7 of the Assessment of your Offer set out at Annex 2 of the Verification Letter.

5. Notwithstanding any disparities in our respective views in relation to incidents, our reasons for having concluded that your offer is abnormally low are as follows:

(a) your Final Tender Submission contains a Comparative Cost of Tender (CCT) which is significantly lower than the other CCTs submitted;

(b) you have stated that for the initial five year duration ("the Duration") the cost of delivering the mandatory Operations covered by Series 6100: Core Operations will be £42.4 million. However, you have submitted an offer which will guarantee you only £1,047,303.84 of turnover for these mandatory Operations over the Duration. This would result in a turnover shortfall of some £41.35 million;

(c) a shortfall of some £123 million exists between the CCT contained in your Final Tender Submission and your assessed turnover requirement for the Duration. This includes a shortfall of some £41.35 million for Operations covered by Series 6100: Core Operations;

(d) your Final Tender Submission contains a Priced Schedule of Rates and Prices - report 1 in which 84 out of 88 Series 6100: Core Operations priced rate items have been priced at one penny (£0.01);

(e) your Final Tender Submission contains a Priced Schedule of Rates and Prices - report 1 in which 1,513 out of a total of 2,313 priced rate items have been priced at one penny (£0.01);

(f) you have submitted an artificially low rate for percentage adjustment item 1200-07-016 of minus one million six hundred and twenty two thousand eight hundred and thirty two per cent (-1,622,832%) which has the effect of reducing your offer, already considered to be abnormally low, by some £15 million.

6. From the foregoing we have concluded that:

(a) your offer carries significant unacceptable risks to us;

(b) your offer is neither economically viable nor sustainable; and

(c) your offer is not genuine."

[14] The decision letter also made it clear (in para 7(a)) that the Scottish Ministers had not relied on the concerns in relation to Amey's presentation of its incident response operations and damage to Crown property in reaching the decision because of the disagreements between the parties on those matters.

The remedy which Amey seeks

[15] Amey seeks declarations that the Scottish Ministers were not entitled to reject its bid under regulation 30(6) of the 2006 Regulations and that they have breached regulation 4(3) of those Regulations in relation to their obligations of non-discrimination, transparency and proportionality. Amey seeks to set aside the decision to reject its tender and the actions which followed, including the decision to award the contract opportunity to Scotland Transerv in relation to the south west unit and to BEAR in relation to the north west unit.

The meaning of an "abnormally low" offer

[16] As the meaning and purpose of the provision that allows a contracting authority to reject a tender on the ground that it is abnormally low lies at the heart of the dispute, I consider the provision and the cases to which I was referred before turning to the details of Amey's challenge.

[17] Regulation 30(6) of the 2006 Regulations provides:

"If an offer for a public contract is abnormally low the contracting authority may reject that offer but only if it has -

(a) requested in writing an explanation of the offer or those parts which it considers contribute to the offer being abnormally low;

(b) taken account of the evidence provided in response to a request in writing; and

(c) subsequently verified the offer or parts of the offer being abnormally low with the economic operator."

[18] It is not in dispute that the purpose of the 2006 Regulations and the directives which they implement was to encourage competition within the European Union by promoting the free movement of services and the principle of non-discrimination. Accordingly, the exercise of the power under regulation 30(6) to reject a tender because it is abnormally low is an exceptional step. The assessment of whether a tender is abnormally low is made by reference to the contract to be awarded and the work involved; it helps to speed up the process of awarding contracts (Impresa Lombardini SpA v ANAS [2004] 1 CMLR 2, Advocate General Colomer at para 32, and the Court at para 62; SECAP SpA v Comune di Torino [2008] 2 CMLR 56, Adv Gen Colomer at para 38).

[19] As the words of regulation 30(6) clearly state, the contracting authority may reject a tender only if the bid as a whole is abnormally low.

[20] It is also not a matter of dispute that a contracting authority was under a duty to identify suspect tenders and investigate a tender if it appeared to be abnormally low. The contracting authority was obliged to raise the issue with the tenderer and carry out the steps listed (a) to (c) in regulation 30(6) (Fratelli Costanzo SpA v Comune di Milano [1990] 3 CMLR 239, Adv Gen Lenz at pp 243-244; Renco SpA v Council of the European Union [2003] ECR II -171, the Court of First Instance at paras 75 and 76; SAG ELV Slovensko [2102] 2 CMLR 36, the Court of Justice (Fourth Chamber) at paras 27-29 and 33). In Renco the Court of First Instance stated (at para 76):

"In that regard, the Court observes that, although Article 30(4) of Directive 93/37 does not require the Council to check each price quoted in each tender, it must examine the reliability and seriousness of the tenders which it considers to be generally suspect, which necessarily means that it must ask, if appropriate, for details of the individual prices which seem suspect to it, a fortiori when there are many of them. Furthermore, the fact that the applicant's tender was considered to conform to the contract documents did not relieve the Council of its obligation, under the same article, to check the prices of a tender if doubts arose as to their reliability during examination of the tenders and after the initial assessment of their conformity."

[21] Various expressions are used in the case law to describe the purpose of the examination. In the quotation above the Court of First Instance spoke of examining "the reliability and seriousness of the tenders". In some cases the contracting authority is said to be looking to see if the bid is "genuine" (eg Fratelli Costanzo, Adv Gen Lenz at p 244, and the Court at paras 18 and 26); in others whether the bid is "serious" (eg Impresa Lombardini SpA, the Court at para 62); in another the Court spoke of the bid being "viable and genuine" and of "soundness and viability" (SECAP SpA, at paras 24 and 29). Further, in TQ3 Travel Solutions Belgium SA v European Commission [2007] 1 CMLR 38, the Court of First Instance (at para 66) spoke of the Commission satisfying itself that "the general expenses ensured correct performance of the expected services and that the selected tender was reliable and serious."

[22] In my view the various expressions, although different, are all directed towards the same broad end, namely that of judging whether the bid is one that is likely to provide the contracting authority with the services which it seeks. Concepts such as reliability, viability and soundness are objective concepts. Seriousness and genuineness have the potential to be subjective; and Amey made much of that in its challenge to which I now turn.

Amey's challenge

[23] Mr Dunlop's central challenge was that the Scottish Ministers had no basis for concluding that Amey's bid was not genuine, serious and viable. It was, he suggested, a remarkable proposition to suggest that the bid was not genuine in the sense that it was a fake or a sham. He asked why an experienced contractor, which was the incumbent supplier in the south west unit, would prepare a bid which was not genuine and serious. Amey from its experience gained in the south west unit and elsewhere in Scotland since 2001 had been able to form a view on what was likely to be needed in future years and thus the likely income which it would receive from the non-core works. It had fixed its rates for those works to subsidise the core works. Amey had made a "holistic bid". Amey was prepared to take the commercial risk that its judgement of future income entailed. There was no question as to the viability of the performance of the contractual obligations as Amey had provided both a performance bond and a parent company guarantee which comprised both a monetary indemnity and a promise to procure performance.

[24] Mr Dunlop usefully summarised his other grounds of challenge under four headings. First, he submitted that the Scottish Ministers had failed to take account of the performance bond and the parent company guarantee that Amey offered in accordance with the requirements of the ITSFT. The Scottish Ministers he submitted had failed to take account of the central point that Amey's performance was guaranteed. Such a failure to take account of evidence was a breach of regulation 30(6).

[25] Secondly, they had fallen into manifest error (a) in their treatment of Amey's presentation of incident response operations and damage to Crown property in annex 5 of the letter of 4 July 2012, (b) in their complete failure to understand the holistic nature of Amey's bid and (c) in their failure to take into account the performance bond and the parent company guarantee.

[26] Thirdly, if contrary to his first and second submissions, the Scottish Ministers had taken into account the performance bond and parent company guarantee they fell into error in considering that they were exposed to the risk of a failure to perform the contract because the parent company guarantee was not only a monetary guarantee but also an obligation to perform or procure performance of the contract.

[27] Fourthly, the decision lacked transparency as it did not explain how Amey's bid could be viewed as other than genuine when the parent company guarantee was offered. Nor was there any explanation why its bid involved unacceptable risk. Amey was left with a real and substantial doubt whether the parent company guarantee had been taken into account and if it had, why it was not considered to be material. He referred in this context to the discussion of the obligation to give reasons in PC - Ware Information Technologies BV v European Commission Case T-121/08 at para 92 and to my opinion in Healthcare at Home Ltd v The Common Services Agency [2012] CSOH 75, at para 22.

[28] In Amey's written pleadings there were also allegations of irrationality and discriminatory treatment and that the decision to reject Amey's bid was disproportionate. But Mr Dunlop did not demur to my suggestion that those cases were ancillary to and dependent on the success of the principal challenge or one of the four points which I have summarised. Relying on the principal challenge and the four points he submitted that Amey had a strong and compelling prima facie case against the Scottish Ministers.

The scope of the court's power of review

[29] It is clear that a contracting authority does not have a margin of appreciation in relation to its compliance with the obligations of non-discriminatory treatment, transparency and proportionality (Lion Apparel Systems Ltd v Firebuy Ltd 2007 EWHC 2179 (Ch), Morgan J at para 36).

[30] But the court gives the contracting authority a margin of appreciation in relation to matters of judgement or assessment. The test is one of manifest error, namely whether an error has clearly been made (Lion Apparel at paras 37 and 38; Healthcare at Home Ltd at para 20). In Renco SpA the Court of First Instance presented the test as a "manifest and serious disregard of the limits of [the contracting authority's] discretion".

[31] The role of the court in reviewing the acts of a contracting authority in a procurement process is restricted. I agree with Lord Malcolm's view that

"The court should be mindful of the risks of becoming embroiled in the merits of the evaluation and assessment of tenders in a public procurement exercise. Not only is the court poorly placed to do this, it would quite wrong for it to trespass on the jurisdiction clearly given to the contracting authority to exercise a broad discretionary judgment as to the identification of the most economically advantageous bid. The court's jurisdiction is to supervise the way in which the process has been carried out, and to review whether proper procedures and basic principles underlying the Directive have been respected, for example, those concerning equality of treatment and transparency."

(Shetland Line (1984) Ltd v The Scottish Ministers [2012] CSOH 99, at para 26)

[32] That statement is also consistent with the approach of Coulson J in BY Development Ltd v Covent Garden Market Authority [2012] EWHC 2546 (TCC) in which he stated (in para 8):

"[T]he court's function is a limited one. It is reviewing the decision solely to see whether or not there is a manifest error and/or whether the process was in some way unfair. The court is not undertaking a comprehensive review of the tender evaluation process; neither is it substituting its own view as to the merits or otherwise of the rival bids for that already reached by the public body."

[33] While in this case we are concerned with a contracting authority's rejection of a bid under regulation 30(6) rather than a decision between tenders, Lord Malcolm's and Coulson J's comments are relevant.

[34] Before turning to a discussion of the merits of the challenge I set out the test for an interim order.

The test for the interim order

[35] Regulation 47A(2) of the 2006 Regulations provides:

"In any interim proceedings under this Part 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 following considerations -

(a) that decisions taken by a contracting authority shall be reviewed effectively and, in particular, as rapidly as possible;

(b) the probable consequences of an interim order for all interests likely to be harmed; and

(c) the public interest."

[36] Counsel agreed that the court had to consider (a) the strength of the parties' cases, (b) the balance of convenience, including whether damages might be an adequate remedy and (c) the public interest. They also agreed that the public interest overlapped with other factors and took account of, amongst other things, the requirement for effective review of the challenged procurement process, the need for certainty in the procurement process and the avoidance of delay if the challenge had no reasonable prospect of success. See Elekta Ltd v The Common Services Agency 2011 SLT 815, Lord Glennie at para 26 ; my decision in Clinical Solutions International Ltd v NHS 24 [2012] CSOH 10 at paras 7 and 8; and Shetland Line (1984) Ltd, Lord Malcolm at paras 11 and 12.

Applying the law:

(i) The strength of parties' cases

[37] I am satisfied from the correspondence that the Scottish Ministers were well aware that Amey was presenting a holistic bid and that it had cross-subsidised its rates in order to obtain a very low CCT. The ITSFT had made it clear to tenderers that the CCT would be used to evaluate the tenders. I see nothing wrong in the Scottish Ministers' use of Amey's very low CCT as a trigger for their enquiries into whether its offer was abnormally low. While, as Amey stated, the CCT was not the offer, it was the published method by which the offers were to be assessed.

[38] It appears to me that the Scottish Ministers faced a difficulty in assessing Amey's offer in accordance with its published methodology because many of Amey's rates were artificial and had been manipulated to reduce the CCT. The commercial viability of the offer depended on Amey's own assessment of the likely quantity and type of work which would be generated over five years by instructions to carry out non-core operations. That assessment might differ from any prediction that Transport Scotland may have made.

[39] In those circumstances the Scottish Ministers were entitled to raise the issue of an abnormally low offer and to call on Amey to provide further information and explanations.

[40] It was the task of the Scottish Ministers to assess Amey's responses and, as I have stated in paragraphs [31] and [32] above, this court has only a limited jurisdiction in its review of that process. I see no legal basis on which Amey can challenge the conclusion of the Scottish Ministers that its offer (a) carried unacceptable risks for them and (b) was neither economically viable or sustainable. No doubt Amey disagrees with both conclusions; but the contracting authority is not obliged to accept an economic operator's assessment of commercial risk and of the likely future income flow.

[41] The conclusion that the offer was not genuine is more problematic for the Scottish Ministers if by so stating they were suggesting that the offer was a sham. But I do not read the correspondence as suggesting that that is what they meant. I interpret their use of the term "genuine" as a reference to the way in which Amey chose to present its offer as the rates which fed into the CCT bore little relationship to the turnover that Amey expected from the contract. That may not be what the Court of Justice had in mind when it used the term in its case law. It seems to me that it was referring principally to bids which an economic operator was not serious about or which did not properly address the invitation to tender.

[42] It is clear from the affidavits that Amey lodged that its employees put very considerable time and effort into preparing the tenders, that Amey drew on its experience as the contractor in the south west unit and elsewhere in Scotland to create its holistic bid, and that it was confident that it had priced the bid in a viable and sustainable way. But the term "genuine" could cover the genuineness of the economic operator's schedule of rates and prices, which was the concern that the Scottish Ministers raised in their letter of 27 April 2012. It would have been helpful if the Scottish Ministers had made clear in the decision letter what they meant by saying that the offer was not genuine. But even if their use of the term were incorrect, that would not undermine their conclusions about unacceptable risk, economic viability and sustainability.

[43] I am not persuaded that much turns on the financial strength of the group of companies of which Amey is a member or on the performance bond and parent company guarantee. The bond and the guarantee would come into effect only after Amey had failed to perform its contractual obligations. The Scottish Ministers were entitled not to attach significant weight to the bond or guarantee in relation to the question of unacceptable risk to them as their primary aim would be to ensure continuity of service to the trunk roads by the economic operator which was awarded the contract rather than the adequacy of a remedy if that operator should fail in its contractual duties. Similarly the concerns about economic viability and sustainability related principally to Amey's performance and not to the adequacy of a fall-back provision.

[44] Accordingly, I do not see any basis for the first of Mr Dunlop's other grounds of challenge (paragraph [24] above). It is true that the Scottish Ministers did not refer to the performance bond and personal guarantee after Amey spoke of it in its letter of 9 May 2012. But I cannot infer from that that they did not take it into account as part of the offer. To my mind it did not have the centrality to the assessment of Amey's offer that Mr Dunlop suggested. In any event, Mr Graham Edmond, who is Head of Network Maintenance in Transport Scotland and project director for the procurement of the two contracts, states clearly in his affidavit that the contracting authority took account of the performance bond and parent company guarantee but did not attach great weight to them because they did not address the concerns which it had raised with Amey.

[45] For essentially the same reasons I do not accept the third of the alleged manifest errors in the second ground of challenge (in paragraph [25] above). Nor do I accept that the Scottish Ministers fell into manifest error in their reliance on their assessment of Amey's offer in relation to incident response operations and repairs to damage to Crown property. In the decision letter they expressly did not rely on those issues in reaching their decision. It is true that the decision letter (in para 4) referred to para 2.7 of their letter of 4 July which included in the summary of the Ministers' concerns and contained a summary reference to those issues. But on a fair reading of the decision letter it was clear that they were not founding on those issues. The reference to para 2.7 of the letter of 4 July should have excluded sub-para (iv); but that was clearly an oversight on the part of the drafter whose intentions were clear from paras 4 and 7 of the decision letter. Finally under the second ground of challenge, I see no basis for the assertion that the Scottish Ministers failed to understand the holistic nature of Amey's bid.

[46] The third heading (paragraph [26] above) also has little substance for the reasons which I have stated in paragraphs [43] and [44] above.

[47] Fourthly, I see no lack of transparency in the decision letter when it is read in the context of the earlier letters by the Scottish Ministers. The parent company guarantee did not protect the Ministers against a failure of performance by the contractor as it was only on that failure that it could be invoked. In my view it simply does not have the centrality that Mr Dunlop suggested. The one area where there is room for doubt is if the Ministers, by saying that the offer was not genuine, were asserting that it was a sham or was not serious. But I do not read them as saying that.

[48] Having regard to the limited scope of the court's review, in my view Amey has at best a weak prima facie case. In reaching that view I have considered the affidavits which the parties have produced (including those from Mr Holder, Mr Withers, Mr Allan and Mr Adams) and have read the correspondence leading up to the decision letter.

[49] In reaching this view I have not overlooked Amey's submission that it adopted a similar approach in tendering for the Traffic Scotland contract and that Transport Scotland on behalf of the Scottish Ministers had initially asserted that the offer was abnormally low but had accepted it after verification. But I note that Ms O'Neill submitted that it was a different form of contract which did not distinguish between core operations and other operations. I am not able to draw any conclusions from the treatment of that contract.

(ii) The balance of convenience

[50] Turning to the balance of convenience, I, first, take into account my assessment of the strength of Amey's case. That is an important consideration.

[51] The other factors which support the bringing to an end of the regulation 47(10) prohibition, on which Ms O'Neill founded, are as follows. There was a need for certainty and to avoid delay in the procurement process. First, the successful bidders had to mobilise their resources over the winter months when plant and equipment was in greatest demand. Secondly, the contracting authority faced the real prospect of having to re-run the process because of the passage of time. This would create problems of manpower and other resources as a re-run would have to take place at the same time as the Scottish Ministers were conducting a procurement process for the north east and south east units. Thirdly, the contractors had each spent around £500,000 in preparing their bids and would incur heavy expenditure if the procurement process had to be re-run. Fourthly, as the affidavits of Mr Easton and Mr Gordon showed, the disruption of the mobilisation processes would have serious financial and organisational consequences for the successful bidder in each case. Fifthly, while it was often not desirable to determine a challenge by deciding on an interim remedy, leaving the prohibition in place might give Amey the remedy of a re-run procurement process which it was unlikely to achieve on a full hearing of its challenge.

[52] The factors which point towards maintaining in place the regulation 47(10) prohibition, which Mr Dunlop advanced, were as follows. First, damages would not be a satisfactory remedy to Amey if it succeeded in its challenge as the effect of removing the prohibition in each case would be to exclude Amey from a substantial part of its business in Scotland and would necessitate a transfer of plant and staff and also a reduction of its staff in this jurisdiction. As Mr Gordon Allan stated in his first affidavit, this would affect Amey's ability to provide services to, among others, Glasgow Airport and Network Rail. Secondly, Amey did not seek a re-running of the procurement process; it merely sought to have the Scottish Ministers give a score to the financial element of its offer. Thirdly, there was a prospect of determining the challenge at a debate in early December with a judicial decision by the end of the year. That would not disrupt the mobilisation by the successful contractor to start the contract on 1 April 2013. Even if such mobilisation were not possible, the incumbent contractors could continue to provide services under an extension of contract until the new contractor had mobilised its resources. Finally, a decision on this application would be likely to determine the whole dispute.

[53] In my opinion the balance of these considerations falls clearly on the side of making the order to lift the prohibition. The absence of a strong prima facie case is a consideration of great weight when the court has to decide whether to leave the prohibition in place. Where such a case seems weak, I do not consider that it would be appropriate to risk the disruption of the mobilisation processes of either of the successful bidders, with consequent cost both to them and the contracting authority, in order to preserve the primary remedy that Amey seeks. If it pursues its claim and establishes its case, it will have a secondary remedy in damages.

[54] I recognise that it is often not desirable to determine the substance of an application by an interim order: pendent lite nihil innovandum (Smyth v Rafferty [2011] CSIH 27); but in procurement cases when the court has to consider a motion under regulation 47(10)(b) of the 2006 Regulations it has to take account of the probable consequences of the order on all interests and the public interest (regulation 47A(2) above).

(iii) The public interest

[55] As I have said, the public interest overlaps with considerations which affect the balance of convenience. There is a public interest in the prompt and effective review of the procurement process to support effective competition and non-discriminatory procurement (regulation 47A(2)(a) of the 2006 Regulations). I have had the opportunity to consider much of the material which would be founded on in such a review if a two day debate were to proceed. There is also a public interest in the economic and efficient operation of the procurement process and in the proper provision of the desired services to Scotland's trunk roads.

[56] In my opinion, consideration of the public interest also points towards the lifting of the prohibition.


[57] I therefore grant the motion of the Scottish Ministers and pronounce an interim order under regulation 47(10) of the 2006 Regulations bringing to an end the prohibition on the contracting authority from entering into the proposed contract in relation to the south west unit.

[58] I have reached the same view for the same reasons in relation to the contract for the north west unit. In my opinion in action CA114/12 relating to that contract I have adopted what I have said in this opinion.