TALGO is taking Britain’s HS2 Ltd to court after the Spanish manufacturer was barred from the fifth stage of the procurement process to supply rolling stock for the new high-speed railway between London and Birmingham.
An expedited five-day trial of preliminary issues will be heard in July rather than October to avoid impacting the wider HS2 delivery programme, Mrs Justice Finola O’Farrell confirmed during an application hearing in the Technology and Construction Court on May 6, as reported by New Civil Engineer.
Talgo and HS2 Ltd jointly applied for the hearing to take place on either July 5 or October 4. According to New Civil Engineer, Justice O’Farrell said she was satisfied that the delay that would result from a later trial was good reason to grant the expedition and for the hearing to commence on July 5.
“Any delay beyond October 2021 has the potential to have an adverse impact on the overall HS2 timetable in particular the timetable for design and development of the trains, which could have a severe knock-on impact to the wider HS2 delivery programme,” O’Farrell said, according to New Civil Engineer.
O’Farrell added that bids for the contract are valid until January 7 2022. “If the determination of these preliminary issues were to be delayed beyond October 2021 there is a risk that any judgement and consequentials could threaten the end date with the implication of a completely new exercise having to be undertaken, which would cause even more delay to the overall HS2 programme,” she said, according to New Civil Engineer.
HS2 Ltd informed Talgo that it would not continue to stage five of the procurement process in January, prompting the manufacturer to issue proceedings against HS2 Ltd in March and April.
Three preliminary issues will be discussed. Talgo is contesting an allegation that HS2 Ltd unlawfully permitted some tenders to proceed with changes to the tenders and/or qualifications made to the bids. The second claim is that HS2 Ltd acted in breach of its obligations in relation to the acquisition of Bombardier Transportation by Alstom during the procurement process. Finally, Talgo claims apparent bias has impaired the procurement process.
Further allegations concern HS2 Ltd’s failure to provide clear and transparent reasons for scores and/or decisions in the procurement exercise; HS2 Ltd’s failure to lawfully exercise discretion in respect of the tenders that would pass through to stage five of the procurement; and manifest errors in the scoring carried out by HS2 Ltd.
HS2 Ltd disputes all claims.
Talgo refused to comment when approached by IRJ. HS2 Ltd also would not comment on the case but did say it now expects to award the contract this summer depending on the outcome of the case.
This has been pushed back from the spring award indicated in HS2’s six-monthly submission to parliament on March 23. Justice O’Farrell said it is a “possibility” that, subject to the outcome, HS2 Ltd could proceed with the contract award “either towards the end of July or probably more realistically in August.”
The order is potentially worth £2.75bn and involves the design, manufacture and maintenance of least 54 360km/h trains for use on the first phase of HS2 between London and Birmingham, which is scheduled to open in 2028.
Talgo is one of five shortlisted bidders for the contract, which HS2 Ltd confirmed in November 2017. If it secured the contract, Talgo would build the trains at a new factory earmarked for Longannet, Scotland, which it would use to supply other British orders. It is competing against Siemens, which would supply the order from its new factory in Goole, East Yorkshire; CAF, which has a plant in Newport, south Wales; a consortium of Hitachi and Bombardier; and Alstom.
The status of both Hitachi and Alstom’s bids for the contract remain unclear following Alstom’s acquisition of Bombardier Transportation on January 29. Both companies said they were unable to comment when asked.
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