Dear Supporters: this morning the result of the Preliminary Issues stage in our court case against GCC was finally announced.
In summary we have a landmark decision but not yet the breakthrough we wanted. The judge found for us on one of the technical objections made by Gloucestershire County Council lawyers, thereby basically confirming that GCC concealed the contract details from January 2016 right up to December 2018 to avoid admitting it was/is illegal. So we DID have the right to bring our claim, once these details were known, exactly as we said.
This is an extraordinary achievement because never before has such a long delay been allowed between a contract being signed and an objection being raised. The judge is therefore highlighting the quite extraordinary lengths a small ‘cabal’ within GCC went to in order to cover their tracks – not for a few weeks or months but for six years in total, all at taxpayers expense.
Sadly and very weirdly he did not find for us on the second issue ie did we have even a ‘fanciful chance’ of having been realistic contenders for an entirely hypothetic re-tender ie the one the GCC did not conduct. We need to consider whether or not to appeal this aspect of the judgement.
The Board of Community R4C have their own views but we want to consult with you. So please write back to tell us what you think and/or email us for a Zoom video conference where all can air their views.
Implications of the judgement … so far
How do you deal with a monstrous white elephant? One bite at a time.
This has been a big bite. Here is why.
The facts revealed in court and the judge’s decision mean that our whole campaign has been publicly and legally validated. It shows that our representatives used our money to conceal from us that they had broken the law. And in so doing they avoided an early challenge to a truly terrible procurement decision, one which is costing us and the environment dear because it allowed the incinerator to be built.
This is no longer a matter of ‘We say…they say”. It’s been shown in open court that GCC were not even sure of their own figures, that they misled Councillors and that they concealed the truth, which is that they paid £150 million more to Urbaser Balfour Beatty than they should have for the wrong solution to our waste disposal needs.
This means that other, non-legal avenues are open to us to effect the changes we want:
- UBB to return their massive overpayment, effectively illegal state aid;
- A change to the contract terms to remove the perverse incentive which makes it cheaper to burn recyclable material in the incinerator than recycle. We want all in the County to be incentivised to reduce waste and incineration – and this will of course reduce the cost of waste disposal.
These two changes alone will, we believe, lead to the elimination altogether of wasteful incineration in our County.
How can this be done?
Even this partial judgement in our favour can be a turning point and allow us to build a cross community, cross party consensus.
So CR4C will be writing to MPs, councillors and others. We will call for an immediate review committee – free from the influence of those that wrongly signed up to a new contract and kept it secret – to look into how we can recover this illegal overpayment from UBB.
We encourage you to do the same. Look on our website for sample letters and write to your MP, Councillor and Press. Support and repost our social media posts.
CR4C will also be writing again to the GCC auditor, Grant Thornton. We issued a formal objection to value for money of the contract in early 2016. The actions are still outstanding, in large part because they were prevented by the Council from sharing the new, 2016 contract and they claim the matter was sub judice. They have formal, quasi judicial, legal duties in this respect and so we now expect them to issue a report in the public interest and support further action.
And we will be looking to work with the Council and UBB to seek changes to the improper contract so that we are not simply tied into ‘waste more, burn more’. A simple change to a single tiered pricing would mean that councils are encouraged to waste less and so have less to burn – particularly less burning of single use plastics.
Perhaps in the future we will have no need for the incinerator at all, and can replace it with a recovery and recycling plant such as the RR4C proposed. Community R4C will keep fighting for this, and welcomes all supporters.
The judgement on ‘Preliminary Issues’
You will recall that while the case we brought was for the public interest but the only way we could do so was by claiming damages. This is because the normal deadline for challenging a procurement decision on its merits alone is six months – and because the new, 2016, contract was kept secret, no one knew then that it was illegal.
GCC claimed we were out of time because we should somehow have known, by some miracle, about the 30% increase which they had deliberately kept secret for two years. The judge rejected this objection, ruling that the figures only came to light when they were sneaked out just before Christmas 2018.
Now you will also know that the judge ruled against us on the other objection ie were we an ‘economic operator’ ie , could we have been real contenders – had there been a re-tender in 2016, as there should have been. We think he got it wrong in law, and in practice. This is because he decided this on the balance of probabilities , ie better than 50/50.
Yet the legal test in this type of procurement case is not better than 50/50 but simply ‘did the claimant ( ie CR4C) have a more than fanciful chance of winning the contract’. Also, given that the Council’s own working group from 2015 favoured solutions which reduced waste, preserved resource and minimised harmful emissions it is more than likely that the re-tender would also have favoured a recycling-focussed solution rather than an incinerator.
We believe that not only would we have been on a long list and then a short list but that our R4C plant proposal would have won!
The judge also ruled that had there been a new tender as required in law it would have reached its long list in Jan 2016, the same time the new contract was signed and, because CR4C was technically not incorporated until March 2016, we could not have been on it. In our view this unrealistic and wrong: it would have taken months to put together a new tender process, particularly since the County’s own working group had concluded any new tender would look very different. Advance warning has to be given for such tenders and we would definitely have put a viable consortium together to bid had we known, as would others who would have been attracted to the revised cost/variation to spec. And CR4C or its consortium partners would have made sure they met the actual deadlines of that tender. Nevertheless he decided that Community R4C not have met this hypothetical deadline for the hypothetical re-tender.
This part of his judgement is very disappointing to us all, and means that our supporters and generous (and fantastic) legal team will not see a financial return for their investment. We are very upset about this and we cannot escape the sense of injustice. It is the County Council that acted wrongly, and our community group has been bankrupted by a judgement which looks most unreasonable – and flies in the face of procurement law.
However we are optimistic that, with your continuing support, this judgement can still allow us to build a cross community, cross party consensus to achieve something surely all will support. We must still do all we can to ensure our County is not incinerating plastics and other recyclates for another 25 years. And it’s not too late to get £150 million back from the contractor, UBB.
Do let us know what you think and/or sign up by email for the Zoom conference.
With all best wishes,
On behalf of the Board of Community R4C