Birmingham City Council, R (on the application of) v Secretary of State for Transport
[2024] EWHC 1487 (Admin)
Siemens Mobility Limited v High Speed Two (HS2) Limited
6 November 2023
[2023] EWHC 2768 (TCC)
High Court
Siemens lost a big court case against HS2. Siemens thought HS2 cheated when it gave a big train contract to a different company. The judge looked at everything and decided HS2 followed the rules fairly, even though there were some minor mistakes.
Key Facts
- •Siemens challenged HS2's procurement process for a £2.75 billion rolling stock contract awarded to a Bombardier/Hitachi joint venture (JV).
- •The procurement involved five stages of evaluation, with the JV deemed to meet the threshold despite a 'Shortfall Tender' in one stage.
- •Siemens alleged undisclosed criteria, manifest errors in scoring, unlawful change of control consent, flawed Stage 5 evaluation, and conflict of interest.
- •HS2 defended its process, citing thoroughness, margin of appreciation, and adherence to regulations.
Legal Principles
Equal treatment, transparency, non-discrimination, proportionality
Utilities Contracts Regulations 2016 (UCR), Regulation 36
Objective rules and criteria for selection
UCR, Regulation 76
Most economically advantageous tender
UCR, Regulation 82
Explanation of abnormally low tenders
UCR, Regulation 84
Limited circumstances for contract modifications
UCR, Regulation 88
Contract award decision notices and reasons
UCR, Regulation 101
Actionable breaches and damages
UCR, Regulations 104, 106, 113
Manifest error standard of review
Case law (Lion Apparel Systems, Woods Building Services, etc.)
Outcomes
Siemens' scoring challenges dismissed.
HS2's assessment was thorough, within its margin of appreciation, and no manifest errors were found.
Shortfall Tender decision upheld.
HS2 rationally exercised its discretion, considering relevant factors and mitigating risks.
Change of control consent upheld.
HS2 followed ITT rules, and the process did not give an unfair advantage.
Stage 5 evaluation upheld.
No manifest errors were found in the application of the disclosed formula.
Abnormally low tender review upheld.
HS2's assessment was rational, considering relevant factors and market trends.
Pre-contract checks upheld.
HS2 acted within its discretion; no obligation to re-verify PQP or ITT compliance.
Modifications claim dismissed.
No unlawful modification decision was made; HS2 had discretion to negotiate.
Conflict of interest claims (Claims 7 & 8) dismissed.
Pension scheme membership did not create a material conflict of interest.
Conflict of interest claim (Claim 9) struck out.
No real prospect of success; contacts with former colleagues did not create a conflict.
Judicial Review claims dismissed.
No public law grounds; adequate remedy under UCR.
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