What's More Difficult Than Decommissioning Nuclear Reactors? Ten Lessons From The Recent Judgment In Energysolutions EU Limited v Nuclear Decommissioning Authority

Jamie Potter analyses the lessons to be learned from the recent procurement law decision in Energysolutions EU Limited v Nuclear Decommissioning Authority, in this blog published by Thomson Reuters.

One might expect there to be little more difficult than decommissioning 12 nuclear facilities, not least given the rather worrying fact that in some cases, "nobody knows how much radioactive waste is present in temporary storage vaults, how radioactive it is, nor how many highly radioactive springs are stored there" and further that "there are few reliable design drawings available of the facilities themselves."

It would, however, seem from the recent judgment in Energysolutions EU Limited v Nuclear Decommissioning Authority [2016] EWHC 1988 (TCC), that procuring the decommissioner might be just as, if not more, difficult. At 324 pages and 948 paragraphs (not including 5 appendices, some confidential) it is a daunting tome, but it still demands to be read by anyone with an interest in procurement law for its elucidation of a wide variety of procurement and civil litigation issues, from the everyday to the genuinely exceptional.

For those without the time to grapple with Mr Justice Fraser's comprehensive analysis, I have distilled ten key lessons from his judgment.

1. Do not "fudge" the scoring process to avoid exclusion of a bidder

   This may just be the most important lesson.

   As is common in procurements, and particularly unsurprising with nuclear decommissioning, the Nuclear Decommissioning Authority (the "NDA") established certain mandatory minimum requirements for tenderers. Energysolutions ("ES") argued that the winning bidder ("CFP") had failed to meet those requirements and should therefore have been excluded. The NDA argued that was incorrect or, even if it was correct, it had some discretion to waive those requirements.

   Fraser J found for ES in respect of at least two mandatory requirements where the scoring of CFP had been "fudged" to avoid automatic exclusion. He explicitly rejected the suggestion that the NDA could somehow waive mandatory requirements after they had been established, not least as the NDA had chosen to establish them as mandatory in the first place: "the rules cannot be changed after the competition has started and the tenders submitted". Even if this meant that all of the bidders had to be rejected:

   This would have been embarrassing for all concerned, but given this was a £4 billion contract for 14 years, re-running...