Herbert Smith Freehills Secures Victory for Client in High-Profile Procurement Dispute
Herbert Smith Freehills Secures Victory for Client in High-Profile Procurement Dispute
Herbert Smith Freehills has secured a resounding victory for its client, High Speed Two (HS2) Limited, in a high-profile procurement dispute brought by Siemens Mobility Limited over two contracts worth an estimated £2 billion for the manufacture and maintenance of rolling stock.
In November 2021, following a protracted procurement process that spanned from April 2017 to October 2021, a joint venture between Bombardier Transportation and Hitachi Rail was awarded the two contracts. Siemens ranked second in the bidding process and initiated legal proceedings challenging the decision to award the contracts to the Bombardier/Hitachi joint venture.
The claim, covering 17 sets of proceedings, raised various objections to the procurement processes. These included HS2’s evaluation of the tenders, its conflict of interest procedures, pre-contract verification processes, and post-contract consideration of potential modifications to the train design.
In a comprehensive ruling, Justice O’Farrell DBE dismissed all 17 claims brought by Siemens. Her decision addressed several key aspects of procurement challenges, emphasising the Court’s role as a supervisory body rather than a decision-maker. She underscored that the Court’s function is not to substitute its judgment for that of the public authority but rather to ensure that the authority’s decision-making process is sound and adhered to legal principles. Siemens’ claims, which often relied on subjective assessments of what should have happened, were rejected because subjective disagreement alone is insufficient to demonstrate a manifest error by the authority.
Justice O’Farrell DBE further ruled that Siemens was not entitled to invoke public law duties since it had a viable remedy under the Utilities Contracts Regulations 2016. The Court emphasized that the case involved a commercial competition without a public law element, and judicial review is a remedy of last resort.
The Herbert Smith Freehills team was led by Partner Nusrat Zar and included Senior Associates James Robson, Chloe Woodward, Lara Nassif, and Olivia Walton, as well as Associates Abigail West, Hussein Mithani, Steven Chua, and Phoebe Fox.
