The Civil Engineering Contractors Association (CECA) has appointed its new regional manager for the Midlands.

Lorraine Gregory is leaving the Construction Industry Training Board (CITB) and succeeding Dawn Karakatsanis, who held the position for over four years.

Gregory said: “I appreciate having some really big boots to fill as Dawn leaves, but she’s also put the foundation in place for us to build the organization and ensure the civil engineering industry continues. to grow.

“I know what an incredible industry this is and the contribution it makes to both the economy and society, and it’s vitally important that we both get this message across, but keep going. improve the culture of the industry around everything from mental health support to diversity.

“For our region to develop, new and improved infrastructure and new buildings are absolutely at the heart of this, and this can only be achieved through the work of our civil engineering companies.

“I am therefore very much looking forward to taking on this new role and serving all of our businesses in the Midlands region.”

CECA Midlands supports its members through training and networking. He will be overseen by Regional Director Gregory, three board directors from member companies and 13 other board members.

CECA Midlands Chairman Nigel Drew added: “We are delighted to welcome Lorraine Gregory as our new Regional Director at a vital time for our industry, our region and indeed the country.

“We would also like to thank Dawn for the incredible job she has done during a time of great uncertainty for everyone.”

The association defined its position for lobbying purposes, with the aim of persuading governments to provide more money to civil engineering contractors.

The publication, Infrastructure: the roadmap for growth, will be used by the ECSC in its meetings with MPs and other political figures during the next party conference season, and in the run-up to the Chancellor’s Fall Declaration.

ECSC Director of External Affairs Alasdair Reisner said: “Our members have told us what steps the government can and must take now to get the economy back on track and bring UK plc back to growth.

“The governments of Westminster, Holyrood and Cardiff have all released plans that recognize the importance of infrastructure to the economy and have started to pave the way for long-term investor confidence. Infrastructure: the roadmap for growth sets out the steps that must be taken to ensure that these plans are met.

“Too often, the basic need for infrastructure is blocked by short-term policies. We want all parties to recognize that the vital need to improve UK transport and public service networks should go beyond party politics.

“We also want future infrastructure investments to be more balanced across the UK, helping to rebuild local economies across the country. To do this, we will need to attract new forms of funding and funding, which can only be achieved with the right models in place.

“Finally, where there are opportunities to stimulate industry growth and activity more directly, these should be seized. The ECSC calls on the government to allocate new resources through contracts for the repair and maintenance of existing infrastructure in order to give an immediate boost to the economy.

CECA recommendations include:

• Provide immediate short-term funding to stimulate out-of-the-box repair and maintenance activities

• Rebalance infrastructure investments across the UK

• Develop inter-party consensus on an infrastructure policy of national significance and a long-term delivery program

• Ensure that appropriate funding and funding models are in place to meet future investment needs

• The implementation of a local infrastructure financing model to develop work programs rather than delivering projects on an ad hoc basis, and to share the costs of investing in infrastructure among all those who benefit from it.

• Extension of borrowing powers to the Scottish and Welsh governments, including the possibility for the Scottish government to issue bonds

• Local business partnerships in England will be urged to focus more on providing infrastructure to drive growth

Routes

• Create an established long-term strategic road investment program

• Establish a “proactive” maintenance regime for roads based on lifetime value.

• Engage in a nationwide roll-out program for ultra-low emission vehicle infrastructure

Rail

• Build on recent improvements in rail procurement to implement collaborative delivery models across the industry

• Use greater visibility on future investments to ensure a high performing and globally competitive rail supply chain

Energy

• Commitment to a long-term UK energy policy that does not discourage much-needed investments

• Continued focus on policies to ensure that the first new nuclear power plants in England and Wales start generating electricity from 2020

• Thorough review of the UK renewable energy roadmap to ensure the 2020 target is met

• Efficient management of shale gas extraction through the implementation of best operational practices, enforced by regulations

Water

• Commissioned a feasibility study to examine bulk water transfer options across the UK

• Smoothing of investments in the water sector to remove the current boom and bust cycles

• Implementation of uniform water skills standards on the site

• Mandatory sustainable drainage to reduce the risk of flooding

Purchasing reform

• The financing of public bodies must be linked to their implementation of the principles of good practice in procurement.

• Steps should be taken to streamline prequalification through the adoption of standard questionnaires developed by industry

• Framework contracts must be concluded in such a way as not to disadvantage certain contractors compared to others.

Workforce

• Full financing of apprenticeships in civil engineering at all levels, regardless of age

• Increased funding for the development and qualification of the existing workforce to promote retention and enable work in new and emerging markets

• Expansion of the pre-learning model and wider deployment of the shared learning program to allow more companies to train the next generation

• Creation of a demand model for infrastructure workforce and skills to provide accurate information by specialty and locality

Security

• Implementation of the recommendations of the reviews Lord Young and Professor Löfstedt

• Formation of an independent body to settle disputes involving breaches of health and safety legislation.

Environment

• Consolidation of existing environmental legislation

• The creation of a monitoring body to ensure a uniform and appropriate application of environmental legislation.

• The creation of a legal obligation for the design of the construction to incorporate measures to reduce waste

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The Gauteng Department of Public Transport, Roads and Works (“the Department”) had issued a tender for the construction of a section of road into a two-lane carriageway.

The call for tenders specified the classification / category of entities that could tender, i.e. civil engineering contractors considered capable of performing contracts worth more than R100 million (i.e. the estimated value of the offer). These specifications were drawn up in accordance with the preferential procurement system introduced by regulation under the Construction Industry Development Board Act, a system applicable to this form of government tendering.

Under the terms of this Act, in soliciting a tender, the employer must provide that only the tenders of contractors registered in the required registration category may be evaluated.

The mandatory site meeting preceding the award of the call for tenders took place in the presence of the respondent (“King”) and the appellant (“Moseme”). At that meeting, King asked whether parties with a lower classification, i.e. for contracts worth less than R100 million, could also bid. This was confirmed by the Ministry and an addendum to the tender documents to the same effect was issued. However, the Department failed to re-advertise by government notice that contractors with a lower classification could also bid (this being a requirement).

King was in the lower category and bid. Moseme fell to the next higher category and also bid.

Regarding the evaluation of the bids, King’s bid obtained the highest points and King was recommended by the engineer of the department. In the final evaluation, however, King’s bid was disqualified (notwithstanding the publication of the addendum to the tender documents) because it did not conform to the advertisement (the basis underlying being that it would have been unfair to other contractors of a lower classification who were not aware of the change, which would then have allowed them to bid). As a result, King’s offer was rejected due to an imperfection in the administration of the tendering process.

The tender was awarded to Moseme.

King then applied to the court for a review under the Promotion of Administrative Justice Act (“PAJA”) of the department’s award and an order setting it aside. King also sought an order awarding him the contract since his bid was lowest priced, scored highest, and recommended by the departmental engineer.

The High Court ruled that the Department had made its decision arbitrarily and that it was fair and equitable to quash the award. The High Court also awarded the contract to King, finding that King had obtained the highest points, had submitted the lowest offer and that it was not impossible to overturn the Department’s decision, as the contract was a “re-measurable” contract so that King would not be paid for something he had not done and Moseme would be paid for the work he had done.

Moseme appealed to the Supreme Court of Appeal (“the Court of Appeal”), bringing the appeal to stay the order of the High Court.

It should be noted that a court is in judicial review under the PAJA empowered to make “any just and equitable order”, thus having discretion. In addition, the validity or invalidity of an administrative act (in this case the award of a contract) must necessarily be assessed in relation to the consequences which have resulted from it, thus “for this reason it will generally be inappropriate that ‘a court decides by declaration on the validity or invalidity of such an act regardless of the particular consequences which would have been produced ”.

The question before the Court of Appeal was whether the Department was obligated to award the contract to King and, if not, whether it was appropriate for the High Court to do so, in other words , the consequences of the administrative act also had to be examined. .

The Court of Appeal concluded that although King was entitled to participate in a fair, equitable, transparent, competitive and profitable procurement process, and that although the administrative process followed by the Department had been flawed, King did not was not entitled to the contract, for the reason that he was not eligible. The High Court therefore erred in concluding that the Department’s decision had been rendered arbitrarily.

Was it then appropriate that the High Court awarded the contract to King? The Court of Appeal held that the High Court had not fully considered the implications of the order in the context of a contract that needed to be reassessed. These considerations were:

• The offers are naturally made up differently. Each bidder will weight and price different items differently.
• The quantified elements will differ from one offer to another.
• Preliminaries and generals, for example, which add no value to an employer and to which a contractor is entitled, can differ significantly as a percentage of the contract price.
• Cancellation of a contract has a number of consequences. The first entrepreneur, for example, may not be able to assert what becomes a revoked contract and have a claim for enrichment at best. Likewise, the employer cannot claim manufacturing defects by virtue of the cancellation of the initial contract. The second contractor can also claim damages from the employer for loss of earnings because he has acquired a contractual right to the entire contract.

Taking these considerations into account, the Supreme Court of Appeal ruled that the High Court had underestimated the harmful consequences of its order and had “disregarded the position of the innocent Moseme”. Thus, despite the imperfections of the administrative process and the injustice suffered by King, the Court of Appeal could not, in the exercise of its discretion, confirm the award of the contract to King.

Moseme’s appeal was therefore allowed (with costs). As a result, the ministry’s sentence remained in effect.

Comment

• The decision highlights the following principles with regard to the award of public contracts:
  • Considerations of pragmatism and practicality must be applied to rule on the validity or invalidity of an administrative act.
  • Even when an award is made invalid, it will not necessarily be set aside if the consequences of that decision produce adverse consequences.

Consequently, the Court commented “any error in the administration of the tenders is not necessarily sanctioned by a judicial sanction”.

• The situation may however be different when there has been corruption or fraud or when the successful tenderer has been complicit in the irregularity.
• The Court skillfully summed up the dilemma our courts face in awarding government contracts as follows:

“These awards are often a source of public concern – and they are a fruitful source of litigation. Courts (including this Court) are inundated with unsuccessful bidders seeking to overturn the contract award and have contracts awarded to them. There are many reasons for these candidacies. Sometimes the award has been tainted with fraud or corruption, but more often than not it is the result of negligence or incompetence or failure to comply with one of the myriad of rules and regulations applicable to appeals. bids Sometimes the successful bidder is to blame for the problem, but there are times when he is innocent. Many cases are plagued by the delay, whether in launching the application (and also because the facts were not readily available or easily verifiable) or due to the delays and suspensions inherent in the appeal process. . If the claimant is successful, the contract may have to be halted with potentially devastating consequences for the government or the successful bidder or both. Conversely, if the works were allowed to be completed, the tenderer who should have been awarded the tender would be unfairly deprived of the benefit of the contract. There are also cases where the final judgment is not pronounced until after the contract has been completed. It is not necessary to sketch further. Tendering has become a risky business and courts are often placed at a disadvantage in the exercise of their administrative law discretion – a discretion that can be academic in a particular case, leaving a aggrieved bidder without any effective remedy. “

• The decision will be of particular interest to bidders of construction projects. The premise, which follows from this decision, is that in the context of construction contracts, a court may not be required to cancel the award of an invalidated tender.