A High Court Judge who approved Covantas legal challenge to the award of the long term Merseyside waste treatment contract has raised questions over potential flaws in the tendering process.
Full details of a ruling from September 26, when Mr Justice Coulson approved a full hearing into the case brought by Covanta over the decision by the Merseyside Waste Disposal Authority (MWDA) to name SITA UK as preferred bidder for the Merseyside and Halton Resource and Recovery Contract, have now been published.
The case centres on Covantas claim that its bid for the contract would cost the Authority up to 200 million less than that submitted by the SITA consortium. And, the company also claims that it was not informed by MWDA over important aspects of its bid which were deemed to be unacceptable.
In his ruling, Mr Justice Coulson concluded that something may have gone very wrong with the tender process for Covantas bid to have failed on two of the five criteria for bidding, in which it was scored 0% for the legal and contractual and overall integrity elements of its bid.
He stated: It may seem, at least at first sight, a curious result that six years of procurement process (including two and a half years of intensive dialogue between authority and tenderer) can lead to the authority’s rejection of important aspects of that tender in so firm a manner as occurred here. That suggests that something, somewhere, went very wrong with the tender process.
Covanta
‘Our case is that MWDA went through the whole process without informing us that elements of our bid were not compliant.’
Fiona Penhallurick, Covanta UK
Following the ruling, Covanta UKs managing director, Fiona Penhallurick, said that the company believes it has a strong case against MWDA. Ms Penahullurick has a strong legal background and was previously with FCC UK where she was group counsel until 2009 when she joined Covanta in the UK. She took on her current role on the departure of Malcolm Chilton he left the business along with a large number of staff earlier this year, partly, it is thought, reflecting the loss of the Merseyside contract.
In a statement today, Ms Penahallurick, said: The judgement also highlights how incomprehensible it is that after six years, and hours of dialogue with MWDA during the tendering process, two elements of our bid out of a total of five were scored at 0%. The whole point of the comprehensive dialogue process is to ensure that the authority ends up with a choice between two excellent bids.
We invested considerable time, money and effort and in seeking to ensure we offered a bid that was intended to be not just acceptable but very attractive to MWDA. Our case is that MWDA went through the whole process without informing us that elements of our bid were not compliant. As a result we believe that this has delivered the people of Merseyside a less economic and less beneficial outcome.
‘Serious concerns’
MWDA has declined to comment further on the case its initial statement in the wake of the ruling on September 26, when it said that it would vigorously defend the case brought against it. In its comments the Authority has emphasised that it had raised serious concerns with Covanta, prior to the company choosing to submit its bid.
The ruling will now lead to a further delay for the signing of the contract, which now looks set to take place during mid-2014 at the earliest, having originally been awarded by MWDA in April 2013 (see letsrecycle.com story).
A date for the full hearing into the case has yet to be set, but it expected to be held in May or June 2014.
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