A Technology and Construction Court judge has ordered an expedited trial in a dispute over the procurement of respiratory protective equipment ("RPE") for the London Fire Brigade.
In Draeger Safety UK Ltd v The London Fire Commissioner  EWHC 2221 (TCC) Mrs Justice O’Farrell rejected the London Fire Brigade’s ("LFB's") application for the lifting of the automatic suspension which arose when the claimant, Draeger, launched its challenge.
Draeger is the incumbent supplier of RPE to the LFB under a contract awarded in 2010. RPE is a type of personal protective equipment that allows the wearer to breathe safely without inhaling hazardous substances, including smoke.
The existing RPE has been in operation for 10 years and certain parts require replacement. Mrs Justice O’Farrell said: “The existing RPE features an ECB [Entry Control Board] with a design that is 20 years old. In recent years there have been significant advancements in RPE technology. Newer models are lighter and smaller than the existing stock, reducing the risk of dangerous heat strain in firefighters and reducing physical stress on their weight-bearing joints.
“Also, there have been significant improvements in communications technology, making available equipment that is more intuitive to use and which can be operated wirelessly. LFB wishes to upgrade its existing equipment to improve the safety of its firefighters and its ability to respond effectively to critical events in London.”
On 5 August 2020, LFB published a contract notice in the Official Journal of the European Union ("the OJEU notice") in respect of the procurement of a ten-year contract for firefighting equipment together with repair and maintenance services.
The stated aim of the procurement was to obtain lighter and easier to use equipment to improve the safety of firefighters and improve the service to the public. The documents issued with the OJEU Notice included an invitation to tender ("the ITT") with Annexes and associated documents, including the "The Respiratory Protective Equipment Replacement Specification" and the "RPE Pricing Schedules".
On 14 October 2020, Draeger submitted a bid for the project, before the deadline of 16 October 2020.
By letter dated 25 March 2021, revised by further letter dated 19 April 2021, LFB informed Draeger it that it had been unsuccessful in the procurement and that it intended to award the contract to MSA Britain Limited ("MSA"), the interested party.
On 23 April 2021, the claimant issued proceedings seeking to challenge, as in breach of the PCR 15, the decision to award the contract to MSA.
In June, Draeger served its Particulars of Claim, including the following grounds of challenge:
i) LFB evaluated warranty options and made its contract award decision prior to choosing the full warranty (pricing Option A) as the preferred option;
ii) LFB failed to score the bids against the criteria and methodology disclosed to bidders in the ITT; it applied the criteria inconsistently, allowed MSA materially to improve the quality of its tender through clarifications and made manifest errors in its assessment of the bids;
iii) MSA's bid was abnormally low and LFB failed properly to investigate whether the price tendered by MSA was abnormally low.
The remedies claimed by Draeger include:
i) declarations that the procurement and/or the contract award decision was unlawful and that LFB was in breach of its legal obligations; that the contract award decision should be set aside; and the contract should be awarded to Draeger;
ii) further or alternatively, damages to be assessed representing the net revenue (including profits and contribution to overheads) that Draeger would have derived from the contract and/or its wasted costs of participation in the tender process.
On 8 July 2021, LFB served its Defence, denying the allegations and disputing Draeger's standing to bring a claim under the PCR 15 on the ground that it would not have been in a position to achieve technical and compliance certification prior to contract award to appropriate B.S. or European (CEN) standards and, therefore, did not suffer any loss or damage as a result of any alleged breach, as required by regulation 91(1) to found a cause of action.
After a hearing on 14 July, Mrs Justice O’Farrell said: “The Court is not in a position to evaluate the competing arguments of the parties on the merits of the case or the counterfactual argument as to whether accreditation could have been achieved prior to contract award. The issues require the Court to consider the arguments against a detailed analysis of the technical documents and factual evidence. For the purposes of the applications, the Court is satisfied that there is a serious issue to be tried.”
On the adequacy of damages, the judge said: “The evidence before the Court does not indicate that this procurement is unique or high value. However, it is being closely watched by a number of other fire and rescue services and is likely to be perceived as setting the standard for improved protective equipment in this sector.
“On that basis, it is arguable that, if the automatic suspension is lifted and Draeger is ousted from its position as the incumbent provider of breathing apparatus for LFB, it will suffer a loss for which damages are not an adequate remedy.”
Mrs Justice O’Farrell said the public interest in the timely introduction of new protective equipment to implement operational improvements would be a very strong factor in favour of lifting the suspension.
“However, in this case, a significant factor is that the Court is able to offer the parties an expedited trial,” she added.
“When the matter was before the Court at the hearing on 14 July 2021, the Court could not accommodate a trial in October 2021, although it could have heard the case in December 2021. However, since the hearing, there have been settlements of other cases in the list and the Court can now offer a trial in October 2021 with the agreed estimate of 5 days.”
The judge said it was recognised that this would cause some delay to the proposed procurement but the impact on LFB's overall strategy would be limited.
“As Mr Tawney [an LFB Group Commander] sets out in his evidence, in order to satisfy the Grenfell recommendations, LFB is procuring radios as part of a three-stage communication strategy. Under phase one, new radios will be provided by September 2021; under phase two, new radio repeaters will be provided by July 2021. These parts of the strategy are unaffected by the suspension.”
The judge said phase 3 comprised the new breathing apparatus with new communications interface. “This is inextricably linked to the RPE procurement and cannot be fully implemented until the new RPE has been provided. However, Mr Tawney accepts that the new radios and radio repeaters can be used in conjunction with the existing equipment interface until the new breathing apparatus is implemented.”
Mrs Justice O’Farrell said the Court appreciated that MSA's interest would be served by lifting the suspension but that had to be balanced against the interest of the parties in achieving a fair resolution of the dispute.
“If, as LFB maintains, there is no merit in the procurement challenge, it can be disposed of speedily, enabling the new programme to continue without the prospect of a claim for damages. If, as Draeger maintains, the procurement exercise was flawed, the Court will have all remedial options available,” she said.
The judge noted that LFB's estimate was that the lead-in time between contract award and operational commencement of the new RPE equipment would be 9-12 months, currently by May 2022.
“The introduction of the equipment will be phased in as the LFB firefighters are trained to use the new equipment. Against that timescale, a short delay until the Autumn, to resolve the procurement challenge by Draeger, will not have any significant impact on the progress of the improvements,” the judge said.
“For those reasons, in this case, the least risk of injustice is to maintain the automatic suspension pending an expedited trial of the dispute.”
Mrs Justice O’Farrell gave directions for an expedited trial in October 2021.