Transport for London’s (TfL) procurement process for the £1bn Silvertown Tunnel contract has been slammed as being “flawed, in breach of the principals of equal treatment […] and manifestly erroneous”.
TfL has also been accused of flouting its principals of “transparency” and “non-discrimination”, in a damning legal document submitted to the High Court by losing bidder Silver Thames Connect (STC) comprising Hochtieff, Dragados and Iridium Concesiones de Infraestructuras.
It comes after TfL named the Riverlinx consortium (consisting of Ferrovial subsidiary Cintra, Bam PPP PGGM, Macquarie Capital and SK E+C) as preferred bidder in May.
However, losing bidder STC has now submitted a Part 7 Claim to the Technology & Construction court, preventing TfL from awarding the contract.
A Part 7 Claim relates to procurement and automatically results in a legal suspension of the defendant’s right to award a contract.
As part of its evidence supporting its Part 7 Claim – seen by New Civil Engineer – STC claims that it “should have been the winning bidder” on the grounds that it “scored significantly better than Riverlinx on price”.
It also claims that TfL “failed to treat STC fairly, transparently or equally” which led to “manifestly erroneous” scoring in relation to commercial aspects of the contract.
The court documents show that TfL gave heavy weighting to price, making up 85% of the overall procurement evaluation, with commercial submissions accounting for 10% and ground condition rates accounting for the final 5%.
While STC scored the maximum 85% for price, the Riverlinx consortium scored 82.34%. However, when commercial and ground conditioning scores were factored in Riverlinx total score came in at 94.56%, just half a percent more than STC’s overall score.
In particular, STC has questioned an “individual evaluators’ scores and rationales” which led to STC having a comparatively lower score for a number of commercial elements.
In relation to “Critical Consents” which make up 3% of the commercial scoring, two independent evaluators (Neil Chester and Chris Hemmingsley) gave STC scores of 15 and 12 out of 20.
However, a third evaluator (Andrew Lunt) only scored STC as 4 out of 20, citing issues relating to an “assumption regarding crane location [as] not realistic” as part of access plans for a footbridge.
STC claims that the crane and footbridge in question “did not form part of the Critical Consent required” and therefore TfL has “failed to evaluate the actual Critical Consent” by adopting “Lunt’s manifestly erroneous approach”.
It adds that: “The Defendant [TfL] treated STC unfairly and/or unequally in comparison to Riverlinx and/ or in breach of its obligation of transparency in that it […] did not enquire into or evaluate Riverlinx’s proposals for crane access for the footbridge.”
The document also raises questions about former STC executive committee member Tim Hasketh’s involvement in the Riverlinx consortium after he was appointed as BAM PPP managing director in January 2018.
STC claims that TfL has “failed to provide” proof that “it did not fail in its duties to protect effective competition and required undertakings to be given by BAM and Mr Hesketh”.
It adds that TfL has refused to provide any documents to support the assertation that “no substantial changes” were made to the Riverlinx bid following Hesketh’s employment.
A spokesperson for TfL said: “We are disappointed that our reserve bidder, STC, has decided to challenge the outcome of our procurement process for the design, build, finance and maintain contract for the Silvertown Tunnel.”
The Silvertown Tunnel design includes a 1.4km twin-bore road tunnel under the River Thames as well as 0.6km of access ramps.