Justice Jonathon Russon said that while information was witheld from the group by the council in relation to a contract signed in 2016, its claim that it would have bid for the contract was dismissed as it “is not an economic operator which could have pre-qualified”.
History
Community R4C, a community group in the area, brought the case against the council in 2019, seeking £350,000 in damages as it said it would have bid for the contract – first awarded in 2013– had it been re-procured.
The group said the increased costs of the new contract, which was reissued after planning delays, doesn’t deliver best value for the council.
The council however, said the new £600 million deal signed in 2016 was an amendment to the initial contract, which was awarded after a “competitive tender process”.
Handing down his ruling this afternoon (17 July), Justice Jonathon Russon said that R4C was not an economic operator which could have pre-qualified to bid for the tender process, and threw out the case.
Appeal
In its statement after the ruling, R4C said it plans to appeal this part of the ruling, but was pleased the judge “ruled that the council concealed, for three years, the details of a £600 million contract with Urbaser Balfour Beatty (UBB) for the controversial Javelin Park incinerator”.
The judge said that that it “cannot in my judgment be said that it had knowledge of facts that were both apparent and clearly indicated a breach of the regulations”.
In response to the ruling, council said it was “pleased”, saying the case had been a “huge waste of everyone’s time and public money”.
The ruling can be viewed in full here.
History
In 2009, Gloucestershire county council began the procurement process for a contract to treat between 130,000 to 160,000 tonnes per annum of residual waste, for a length of between 25-30 years.
The initial £500 million contract was signed with Urbaser in 2013. However, after delays to the delivery of the Javelin Park plant, which included a protracted planning process which the secretary of state called in, a new contract was signed between the two in February 2016.
Community group R4C claims that the new contract should have been procured to secure better value for the council. It said costs under this contract rose to over £600 million.
R4C sought damages of £350,000 in relation to the award of the contract, and says it would have bid for the contract if it was put out for tender, as it has been working on plans for its own facility.
The judge says he “observed that the claim did not appear to be first and foremost one about money”, to which R4C’s representatives said his client was not interested in increasing the burden for ratepayers .” Instead, CR4C’s interest in establishing that there had been a breach of procurement law was to establish the beginnings of a case that there had been unlawful State Aid.” the ruling said.
‘Pleased’
In its statement, the council said it was pleased with the decision, and said it welcomes scrutiny of its processes and decisions.
“The judge clearly states that CR4C did not have the financial standing or proven track record to bid for large scale projects”
Cllr Nigel Moor, cabinet member with responsibility for Gloucestershire’s waste services said: “I am really pleased CR4C’s claim has been thrown out by the High Court, as we expected. The judge clearly states that CR4C did not have the financial standing or proven track record to bid for large scale projects, and rules that, as they did not exist at the relevant time, their case cannot proceed. We said this months ago – this has been a huge waste of everyone’s time and public money. Javelin Park continues to work well – it has stopped household rubbish going to landfill, cut Gloucestershire’s CO2 levels by 40,000 tonnes a year and generates electricity to power thousands of homes.
“As a public organisation, we welcome challenge and scrutiny of our processes and decisions. However, we will always take the necessary steps to make sure the council achieves the best possible deal on behalf of the people of Gloucestershire.”
‘Consistent evidence’
Community R4C said the ruling shows it could not challenge the 2016 ruling, and instead had to seek damages in this case.
Representing Community R4C, its barrister Duncan Sinclair said: “The evidence is consistent and compelling that all but a small cabal within Gloucestershire county council were in the dark.
“GCC’s deliberate concealment of the facts for so long meant it was impossible to challenge the 2016 contract at the time”
“The council resisted disclosure of even the first contract for four years, before the Information Commissioner’s Office (ICO) and then on appeal. It then resisted disclosure of any details of the disputed second, 2016, contract for another two years, through the ICO and by appealing until it finally released documents on 20 December 2018.
“GCC’s deliberate concealment of the facts for so long meant it was impossible to challenge the 2016 contract at the time or indeed to seek to obtain a remedy annulling the contract. C4RC was thus forced to seek damages in order to expose the illegality of the 2016 contract.”
Useful links
The judgment can be read in full here.
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