A council has acknowledged that it broke procurement law in a power-station demolition tender.
Brown and Mason Group Limited brought the claim over multiple breaches of public procurement law and unfair treatment from Cardiff Council over the award of a contract to demolish the former Aberthaw Power Station.
The contract, valued at approximately £30m, was subject to the Public Contracts Regulations 2015.
Rival demolition company Erith beat Brown and Mason to the job following an evaluation process, including an assessment of quantitative social value commitments.
But the latter firm’s lawyers argued that the council conducted its evaluation in a “non-transparent” manner.
This meant the demolition specialist “was deprived of a real chance of winning the Aberthaw contract”, they added.
Brown and Mason said the council failed to provide “any sufficient, clear and transparent statement of reasons” for its decision to select Erith.
For instance, Cardiff Council disregarded Brown and Mason’s “intended quantitative social value commitments”, the firm’s lawyers said.
They alleged that Cardiff Council refused to evaluate a revised submission when the company attempted to amend the social value commitments in response to the council’s decision.
Brown and Mason also argued that the council allowed Erith to amend its bid after the tender deadline, 20 January 2023, in contravention of procurement rules.
Relevant documents related to Erith’s bid “were not submitted and/or made accessible” to Brown and Mason until about six days after the tender deadline had expired, the particulars of claim document added.
In addition, Brown and Mason cited an 11 July 2023 message from Erith to the council, which stated: “We are currently not able to offer a bond due to the wider bond market, which has been severely rocked by the recent collapse of Henry Construction and caused the bond market to go into turmoil.”
Later the same day, Erith sent another message contradicting this statement and saying “we will be able to provide a performance bond for Aberthaw”.
Brown and Mason’s lawyers said that the initial message should have rendered Erith’s bid non-compliant, and that Erith was not entitled to change its mind.
Cardiff Council’s conduct and decision to choose Erith over Brown and Mason were therefore “unlawful and in breach […] of the duties of transparency and equal treatment”, the legal document stated.
The particulars of claim stated that Brown and Mason would have won the Aberthaw contract “if the defendant had complied with its legal duties”.
Cardiff Council admitted liability in a hearing at the Technology and Construction Court on 31 January this year.
Brown and Mason is seeking damages from the local authority. Proceedings in that effort are ongoing.
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Ben Vogel