Siemens Mobility v High Speed Two: Key Issue Upheld in Procurement Dispute

Citation: [2023] EWHC 2768 (TCC)
Judgment on

Introduction

This article provides an analysis of the case law summary for Siemens Mobility Limited v High Speed Two (HS2) Limited, a procurement dispute involving the High Speed 2 railway project. The case law summary outlines seven key topics, each of which will be discussed in turn.

Evaluation Process

Siemens alleged that HS2 made manifest errors in the evaluation of bids, specifically in relation to the assessment of the JV’s bid as abnormally low. The court, however, found that HS2 acted within its discretion and did not breach its obligations under the relevant procurement regulations. This aligns with the legal principle that contracting authorities have a wide margin of discretion in the evaluation of tenders, as established in cases such as SAG v. European Union.

Conflict of Interest

The case law summary highlights potential conflicts of interest within the procurement team. Despite Siemens’ allegations, the court concluded that the alleged conflicts of interest did not give rise to any actual or potential bias. This decision is in line with the legal principle that a conflict of interest must be real and not merely hypothetical to be actionable.

Transparency and Equal Treatment

Siemens argued that HS2 did not follow principles of transparency and equal treatment in evaluating the JV’s tender. The court, however, found that HS2 had adhered to these principles, affirming the legal principle that all tenderers must be treated equally and that the procurement process must be transparent.

Pre-Contract Checks

Siemens contended that HS2 failed to carry out adequate pre-contract checks. The court rejected this claim, upholding the principle that contracting authorities have a wide margin of discretion in verifying the ability of tenderers to fulfill contract requirements.

Change of Control

Siemens claimed that the change of control consent following the acquisition of Bombardier by Alstom gave the JV an unfair advantage. The court dismissed this claim, affirming the principle that changes of control do not automatically lead to an unfair advantage.

Procurement Regulations

The court considered regulations related to equal treatment, transparency, non-discrimination, and proportionality. The court found that HS2 had complied with these regulations, reinforcing the principle that contracting authorities must adhere to these principles in the procurement process.

Judicial Review

Siemens sought judicial review of the procurement decisions. The court rejected Siemens’ request for relief, including setting aside the contract award decision and re-evaluating the bids. This decision affirms the principle that judicial review is a remedy of last resort and will only be granted in cases of clear illegality or procedural irregularity.

In conclusion, the court’s decision in Siemens Mobility Limited v High Speed Two (HS2) Limited upholds the integrity of the procurement process and affirms the application of legal principles related to procurement law, conflict of interest, and judicial review. The case serves as a reminder to legal professionals of the wide margin of discretion afforded to contracting authorities in the procurement process and the high threshold for establishing a conflict of interest or a breach of procurement regulations.

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