Strange as it may seem, a council faced with two bids that are equally good can take all kinds of things into account when picking a winner, as this recent case demonstrates

At the beginning of 2008 four councils in the west of England banded together to set up a procurement framework for refurbishment projects worth up to £15m. The deal, which was to have come into effect in April of last year, has been delayed by a legal dispute between the two firms bidding for a place on it.

The Providus framework was uncommon, although not unique, in that it was to contain only one supplier. This meant that the contest was for a guaranteed workload of £150m over the six-year lifetime of the agreement, and victory or defeat would have a significant effect on the commercial fortunes of the tendering companies.

By December 2008 the procurement team from the four councils involved (Worcestershire, Shropshire, Avon and Somerset) had arrived at a shortlist of two. One was Vinci UK, the national subsidiary of the largest contractor in the world; the other was the Wurzels, a consortium of local firms led by Wilson Construction, a general purpose building concern that consisted of three employees and the owner’s 15-year-old daughter.

After final submissions were made, the client found itself on the horns of a dilemma. Whereas Vinci’s tender was somewhat cheaper than the Wurzels’, this was principally owing to the sourcing of materials from the Far East; the Wurzels, by contrast, were committed to using local products purchased from B&Q.

Both sides made strong cases under the headings of sustainability and training: Vinci’s multimillion pound expenditure on research and development being countered by Mr Wilson’s daughter Rowena, who scored highly in several of the councils’ social cohesion and diversity categories, including the rehabilitation of juvenile offenders.

After it became apparent that the two sides were tied, there was a series of supplementary submissions and meetings, after which the client team, led by Mr Graham Spooner, chief executive of Somerset council, decided to invite both candidates to a final interview. Despite several hours’ discussion, however, events were no closer to reaching a resolution. At this point a less scrupulous man than

At this point a less scrupulous man may have inquired into Mr Spooner’s kitchen extension needs

Mr Wilson may have inquired into Mr Spooner’s kitchen extension needs, but this was not the course of action he followed. Instead he simply said: “Bags I that job.” The client, perhaps relieved to have arrived at last at a decisive criterion, awarded the contract to Team Wurzel.

Readers familiar with the recent history of public procurement will not be surprised to learn that a legal challenge was not long in coming. Vinci first applied for a summary judgment striking out the award. This being refused, the case came before His Honour Judge Magdalene at the Bristol branch of the Technology and Construction Court. In finding for Wurzel, the judge based himself on the legal principle of qui trouve, qui garde (and its corollary, qui perd, qui pleut). This idea has a long history of employment in jurisdictions founded on the Anglo Saxon traditions, although more often that not in an informal context. Nevertheless, the judge explained that it was contained “within the codification of civil law that developed out of the customs of the Middle Ages, and became the undisputed rule by which certain rights or obligations were regulated between members of a community”.

In its appeal against this judgment, Vinci’s legal team executed an abrupt change of tack. Whereas they had based their case in the court below on the obligation of a public authority to act rationally, and the protection afforded by natural justice against arbitrary tribunal, they now claimed that, Mr Perec, Vinci’s representative at the meeting, had uttered the words “white rabbit, white rabbit, white rabbit” immediately after Mr Wilson had made his “bags I” claim.

They further maintained that within the ordinary use and meaning of this area of customary law, that formulation was a full and final rebuttal of any claim of ownership, including “I seen it first”, “one potato, two potato”, or “ibble obble, black bobble”. Wurzels’ response was simply “no he never”.

In Lord Neuberger’s judgment, in which the other two appellate judges concurred, the factual question of whether or not the principle of white rabbit had been invoked was not relevant, as it was common ground that the meeting had been held on the first of the month, which meant the defence was a priori void.

This case is now on its way to the House of Lords, where the effect of Mr Wilson’s failure to append “no returns” to his claim will be tested, so it’s likely that this increasingly important area of law will be developed further. In the meantime, council tenants in the four counties concerned will have to make their own way to B&Q.