Why are Bombardier suing Merseytravel over the contract for new trains?

John Brace

6 years ago

Why are Bombardier suing Merseytravel over the contract for new trains?

Councillor Steve Foulkes (Lead Member for Finance and Organisational Development) (left) at a Merseytravel Committee meeting

Edited 26.11.17 to include link to Hansard report of parliamentary debate and also text of first two pages of Particulars of Claim.

I’ve written previously about the large sum that Merseytravel is spending to defend a legal challenge brought by Bombardier over the procurement of new trains on the Merseyrail network.

You can read a decision by The Hon Mr Justice Coulson as to whether the Particulars of Claim are confidential here. That decision decides that the Particulars of Claim are not confidential.

The contract for new trains has led to a series of one day strikes by Merseyrail staff as the contract for new trains are for trains operated only by a driver rather than a driver and guard.

Paragraph 32 of the Particulars of Claim state:

“In light of the expiry of the standstill period, and in order (a) to protect Bombardier’s position with regard to the time limit in reg. 45D UCR 2006 and (b) to prevent Merseytravel from contracting with Stadler before Bombardier had had the opportunity to satisfy itself as to the legality of the tender evaluation process, the claim form herein was issued on 11 January 2017 and notified to Merseytravel on the same day. Pursuant to reg. 47G UCR 2006, these steps have the effect of requiring Merseytravel to refrain from entering into the Contract with Stadler pending the outcome of these proceedings or further order of the Court.”

Despite the above, Merseytravel and Stadler Bussnang AG entered into a Manufacture and Supply Agreement for the new rolling stock on the 16th February 2017.

You can read the full Particulars of Claim below. There will be an adjournment debate on the future of guards on Merseyrail trains in the House of Commons on Wednesday afternoon (Wednesday 22nd November 2017).

Bombardier Transportation Limited vs Merseytravel HT-2017-000009 Particulars of Claim page 1 of 25

(court stamp)
* HIGH COURT OF JUSTICE*
TECHNOLOGY AND CONSTRUCTION COURT
26 Jan 2017

Claim No. IT-2017-0000009
HT-2017-000009

IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
BETWEEN:

BOMBARDIER TRANSPORTATION UK LIMITED

Claimant

-and-

MERSEYTRAVEL

Defendant

PARTICULARS OF CLAIM

I. Introduction and Summary

The Claimant, Bombardier Transportation UK Limited (“Bombardier”), is a company incorporated under the law of England and Wales with the number 02235994. It is a major manufacturer of transport vehicles in both the rail and aerospace industries in the UK and globally. Bombardier is part of the global Bombardier group, which is headquartered in Montreal, Canada.

The Defendant (“Merseytravel” is a body corporate under the Transport Act 1968. It acts as the executive arm of the Liverpool City Region Combined Authority in arranging and providing public transport infrastructure in the Liverpool area.

These proceedings arise out of a tender process (“the Procurement”) undertaken by Merseytravel for the award of a number of contracts (together “the Contract”) which form the Merseytravel Rolling Stock Programme (“the Programme”) in which Bombardier participated. The Programme in summary comprises the design, manufacture and supply of train rolling stock for operation on the Merseyrail

Bombardier Transportation Limited vs Merseytravel HT-2017-000009 Particulars of Claim page 2 of 25

Electrics Network in Merseyside, Cheshire and West Lancashire, and certain maintenance services and depot works relating to that network and the new rolling stock.

The Procurement was commenced by notice published in the Official Journal of the European Union on 7 October 2015, under reference number 2015/S 194-352649 (“the OJEU Notice”). The OJEU Notice stated that the estimated value of the Contract to be awarded pursuant to the Procurement was between £200 and £700 million.

On 16 December 2016 Merseytravel announced that it had decided, following evaluation of tenderers’ Best and Final Offers (“BAFOs”), to award the Contract to Stadler Bussnang AG (“Stadler”). Bombardier was informed by letter from Merseytravel of that date that its tender had been unsuccessful. Bombardier understands from documents subsequently disclosed by Merseytravel that bids from only itself and Stadler were under consideration in the final stages of Procurement, hence Bombardier’s tender came second in the tender evaluation.

Bombardier now challenges Merseytravel’s decision to award the Contract to Stadler. In summary, and as further particularised below, Bombardier has identified a considerable number of serious deficiencies and illegalities in Merseytravel’s evaluation of its tender and, on the basis of the limited information available to it currently, has identified material suggestive of serious illegalities in relation to Merseytravel’s approach to Stadler’s tender.

Bombardier has informed Merseytravel of its concerns and sought access to Stadler’s tender and to key documents produced by Merseytravel during the evaluation of Stadler’s tender, to enable its concerns to be investigated. However Merseytravel has:
1. Consistently refused to disclose to Bombardier that documentation despite Bombardier’s willingness, stated clearly to Merseytravel on 22 December 2016, to have such documentation disclosed into a confidentiality ring;