Judgement awaited as GMWDA court hearing ends

However, the Authority's hopes of securing a judgement before it meets to set the annual levy for its nine member councils on Friday (February 12) were dashed, as Mr Justice Mann told the court that, due to the complexity of the case, he instead hoped to pass judgement “at some point next week”.

Earlier in the four-day hearing, the Authority's lawyer Dinah Rose QC had warned that if the claim, which is believed to be worth around £92 million, was not struck out before the levy was set, then the potential cost of damages risked being passed on to the GMWDA's members, and, ultimately, the region's council tax payers (see letsrecycle.com story).

This argument was countered yesterday by SITA UK's lawyer, Michael Bowsher QC, who claimed that it was in fact more in the public interest to proceed with the company's claim, which is based on its not being allowed to resubmit a bid when the costs of the contract, which was awarded to Viridor Laing changed significantly.

“The size of the contract makes it even more imperative that the case be dealt with,” he said, adding that: “This is an enormous contract with very substantial increases in capital expenditure built in and there must be real question as to whether that award has been made on the basis of the most economically advantageous tender”

Highlighting particular issues with how the Authority conducted its procurement process, Mr Bowsher said that the case should be allowed to continue because of “the conduct of the authority throughout the process in failing to give us fair picture on the basis of which we had been eliminated and the basis on which that continued to a correct decision”

GMWDA

However, summing up the GMWDA's arguments for SITA's damages claim being struck out, Ms Rose claimed that the company had known about various changes to the contract being made during the procurement process.

In particular, she detailed correspondence sent by SITA on May 27 2009 which, she said, showed the company knew there had been changes to the contract and believed them to represent breaches of procurement regulations.

And, she said that the company only needed to know that changes to Viridor Laing's bid had affected how it compared to SITA's bid, not exactly how much the comparison had changed, for it to be able to launch a claim for damages based on it not having been allowed to re-submit a bid to counter Viridor Laing's changed tender.

“Their case is not that the VL bid as it stood in April 2009 was less good than SITA's bid in January 2007. Their case is because the VL bid was no longer the bid that had been accepted at that time they should have been able to resubmit their bid,” she said.

“So Mr Bowsher's argument that they couldn't issue proceedings unless they knew the six point gap had closed is just wrong,” she added.

Ms Rose claimed that, even if SITA was not aware of all the details of what it thought were breaches of the procurement regulations in April 2009, when the contract was signed with Viridor Laing, it would have been able to plead a basic, or 'prima facie' case before the usual three month limitation on its claim ran out.

“The quality of information required to plead a basic case is really quite minimal,” she said.