Before proceedings were started, Harmon had good relations with Laing Management, and it believed its tender was progressing satisfactorily. Harmon knew that it was the lowest tenderer, and as far as it was concerned, it should have been awarded the contract.
To sue or not to sue?
Building ran a news article in its edition of 4 April 1996 predicting that Seele/Alvis would be awarded the contract and implying that the British government had interfered in the bid process. After losing the contract in May 1996 Harmon decided to take advantage of a clause in The Public Works Regulations 1991 that allows an unsuccessful tenderer to ask for reasons why their bid failed. Laing Management responded by saying that "the project team considered that your proposals for manufacturing, organisation and skilled staffing were uncertain and judged to carry a high level of risk to the overall quality of the project".
At this point, Harmon had a difficult decision to make. Although it was clear that the criteria against which the contract was to be awarded had not been properly set out in the invitation to tender, it had no real evidence that there had been any impropriety in the way its tender had been assessed. But the reasons given for not being awarded the tender did not ring true.
Having decided to institute proceedings, Harmon then had to provide £650 000 by way of bond as security for the defendant's costs.
The next hurdle that Harmon had to overcome was that most of the evidence to establish its case was in the hands of Laing Management and the defendant's professional team. The defendant refused to disclose Laing Management's documents on the basis that they were not in the defendant's possession, custody or control. Crucially, Judge Humphrey Lloyd ordered that Laing Management produce its documents because, under the terms of the construction management agreement, the defendant had a clear right to obtain them.
Once the documents were disclosed, the nuggets of evidence to establish the "buy British" policy came out. There were numerous references throughout their documents to the buy-British policy. The judge found as a matter of fact that the defendant operated such a policy.
The next hurdle for Harmon was that most of the evidence to establish its case was in the hands of Laing Management
Because of the status of the defendant there were issues of parliamentary privilege that the defendant quite properly raised. The Bill of Rights 1689 was called in to play by the defendants. It provides "that the freedome of speech and debates of proceedings in parlyament ought not to be impeached or questioned in any Court or place out of parlyament". Minutes of various House of Commons committee meetings were disclosed after a threat of specific discovery, at which the whole issue of parliamentary privileges would have been considered by the courts, which the House was not prepared to risk.
However, even the limited amount of disclosure from the defendant's committee meetings gave us further evidence of the buy-British policy. In particular, the Accommodation and Works Committee minutes of 17 January 1995 state that: "The committee expressed its wish that as much work as possible in connection with the new parliamentary building should be allocated to UK firms within the confines of statutory cost and quality requirements."
The case gets to trial
At trial, the case got better for Harmon as the judge found the defendant's witnesses particularly unconvincing. The judge concluded that the actions of Andrew Makepeace, the Parliamentary Works Directorate's project sponsor, were "not the actions of an honest and reasonable man", and that he had an ability "to omit from his evidence that which did not assist him or the defendant's case".
During the course of the trial, documents that were clearly relevant to the issues in the case were disclosed for the first time. A fundamental issue was whether or not the defendant had to accept the lowest tenderer. Laing Management had produced, in conjunction with the professional team, a procedures manual for dealing with how contracts were to be let for each package on the project. The manual stated that: "It is assumed that the evaluation will be in favour of accepting the lowest tender which meets the requirements." This manual was not disclosed until one of the defendant's witnesses referred to it in cross-examination. The judge asked why it had not been disclosed earlier, and found the explanations given by Makepeace and the defendant's solicitor profoundly unsatisfactory and disquieting and, in the case of the former, "incredible". The document had apparently been lying forgotten in Makepeace's cupboard in his office.
At day 12 of the trial, there was an issue as to whether Harmon had been given the true reasons why it had not been awarded the contract. Laing Management had prepared a draft reply. That draft had not previously been disclosed, and set out the real reasons that Harmon had not been awarded the contract, which were that a successful tenderer "had offered an alternative tender proposal that was considered by the project team to be technically and commercially superior to the design issued to tenderers". The letter that was sent to Harmon did not give the real reasons why it had lost.
Where we are now
Postscript
Ashley Pigott is a partner in solicitor Wragge & Co.
