is a community-owned initiative holding the county council to account over its dodgy incinerator contract and offering alternative, sustainable solutions to treating our waste.
Legal update for CR4C supporters, 12th March 2020
JAVELIN PARK HIGH COURT CASE
After three grueling days in Court the preliminary hearing has been extended for written and oral submissions by each side to be heard on the 19th March – and then it is up to the judge. We are very happy with how the hearing has gone and we should all join in a big thank you to the team that has worked so hard to put together a very strong and well-presented case. All that could be done has been done and we have a real chance to turn the corner on this disastrous contract for the County and embrace circular economy, low carbon principles.
You may recall that our case is that Community R4C (“CR4C”) and its fellow consortium members were illegally denied the opportunity to bid for the new contract awarded in early 2016, and that this has come at a considerable cost to the people of Gloucestershire, both financially and environmentally.
The GCC’s legal team have sought to argue that our challenge should be thrown out on two technical preliminary issues: it was too late according to bidding rules and a CR4C led consortium could not have got through a pre-qualification.
Our arguments stood up well and were reinforced by the excellent evidence provided by our three witnesses. One of these was Sarah Lunnon, who was a Glos County Councillor and sat on the key committees, the planning committee and the ‘Residual Waste Working Group’, during the crucial period. Ms Lunnon confirmed that she was not aware of any substantial contract price increase during that period. Another was Mark Christiansen, a consultant to R4C who spoke about the resource recovery technology we have chosen called MBHT and about potential consortium partners. Our key witness was Tom Jarman who we feel resisted some aggressive questioning by GCC’s barrister to demonstrate, over 1 ½ days of evidence, that the CR4C consortium bid would have been an effective and viable contender.
The evidence we submitted and the cross-examination of GCC’s key witness showed, we feel, that the Councillors, public, industry and CR4C could not have known the new contract details until GCC released its secret figures in Dec 2018.
The Council’s evidence accepted for the first time that the contract signed with UBB in 2013 was worth £469m (so less than the £500m you will have seen in the press) and that the new contract signed in 2016 was valued at £613m – an astonishing 30% increase! It was also accepted that this new contract was awarded without a new tender process, and absent of competitive pressure. It is a principle of procurement law that a material change in a contract would require a retender, and that normally an increase in cost of more than 10% is regarded as material.
We will now have an extra day for closing arguments to be heard. Both sides will circulate these in writing next week, and the Judge will consider these and oral submissions on Thursday 19th March, and he could reach a judgement then, if not we can expect a judgement in a few weeks.
We’d like to thank our solicitors, Shakespeare Martineau and our barrister, Duncan Sinclair who have been really excellent. They are high powered, hard-working and very capable. We’d also like to thank our witnesses who did an excellent job demonstrating the quality of our case – they all stood up well to some challenging questioning.
Below are some answers to questions we’ve been frequently asked.
Why has the Council put so much into this ‘preliminary issues’ trial?
We have been repeatedly dumbfounded by the huge amount of public money the Council has thrown at keeping this contract secret, despite the clear public interest and rulings by the Information Commissioner’s Office and Freedom of Information tribunal.
Ultimately our case is aiming to establish the grounds for an illegal State Aid claim, which would mean a rebate to the County of £10’s millions, together with a much lower cost for waste treatment in the future, saving at least many £millions a year. GCC is defending the contract award, arguing that there was no need to retender, and that CR4C could not have legitimately bid anyway.
Procurement law is based around the principle of ensuring that there is a fair market competition for government contracts – and this includes ensuring that smaller companies and newer technologies also get a fair hearing.
What happens if we win?
The next step will be the trial on the substantive issue – i.e. whether there was a breach of procurement law. We feel very confident on this point, and expect to be able to get legal insurance to cover the costs of the trial.
If we win the substantive case it is then a short step to proving illegal State Aid. This could result in a demand for UBB (and its sponsors) to repay to GCC all illegal State Aid already paid (including for example some of the capital contributions of £38m) and reduce its contract price. This could save £millions per year for taxpayers. We can then expect a renegotiation of the contract and repurposing of the incinerator in favour of something cheaper – and better for the environment.
What happens if we lose?
That would of course be very disappointing based on what we have seen and heard so far. But it would not of itself be terminal. We could still argue unfair competition, the breach of State Aid and the breach of the Waste Regulations (which make the waste hierarchy a matter of obligation for Councils), however the prospects for getting an alternative plant will be damaged.
We would still be open to work with GCC to minimise the harmful incineration of waste. We would discuss with supporters how we wanted to take these issues forward so that we do not have harmful incineration in the long term in Gloucestershire.
We are feeling optimistic and can see more clearly than for some time a direct route to getting something much better for Gloucestershire. Fingers crossed.
We look forward to seeing some of you on March 19th at Bristol High Court, let us know if you want more details.
Director, Community R4C