At the conclusion of a judgment which lasted nearly five hours, Lt-Bailiff Hazel Marshall said that having looked at all of the evidence submitted it seemed to her that Gama had misjudged the commercial situation and was trying to correct it in any way that it could by bringing this action.
The company was unsuccessful in its bid for a review of the process which led to it losing a tender process to operate the island’s medevac service.
The company took the States of Guernsey, acting through Health & Social Care, to court after 247 Aviation was awarded the contract earlier this year.
Its application was based on three main grounds – a late change of aircraft requested by Jersey, a lack of transparency in the reasons and scoring of the tenders by Guernsey, and irrationality in the evaluation of the scoring.
Mrs Marshall yesterday spent nearly five hours delivering an extempore judgment because she said a full written judgment would take several weeks and she was reading the preliminary document because she appreciated that the commercial nature of the case meant that a prompt decision was needed.
Ultimately, she rejected Gama’s application and said that the process came down to the fact the States was charged with making the best use of taxpayers’ money.
The tender process had started last summer, when bids were invited from airlines looking to take on the Jersey and Guernsey medevac service, which had been operated by Gama since August 2020. It bid for the contract alongside two other operators, one of which dropped out early on, leaving the eventual successful bidder, 247 Aviation, being appointed.
After outlining the background to the case, Mrs Marshall first dismissed the request on the grounds of Jersey’s change of the aircraft it required for the service.
Although Jersey and Guernsey were inviting tenders jointly, they could have awarded separate contracts and both set out different requirements.
In its early documentation, Mrs Marshall said that Jersey had set out its requirement for only twin engine craft, which was the kind already operated by Gama but which were not operated by 247.
But Jersey later dropped that requirement, enabling 247 to proceed, but leaving Gama without enough notice to make changes to its own bid.
This, however, had no bearing on Guernsey’s requirements, Mrs Marshall said, and so she did not see this as a valid ground for Gama to call for a judicial review.
At the same time, she said that Gama had shown no sign that it was preparing to present a revised bid with single engine aircraft.
At the original hearing, the States had said that Gama should have submitted its bid for a judicial review earlier and Mrs Marshall agreed that it had not been sufficiently prompt.
Her judgment went into more detail about the procurement process as operated by Guernsey, and despite a suggestion by Gama that the States had set out to follow the UK procedures but had not done so, Mrs Marshall found that this was not the case and rather it had set out that it would be following best procurement practice, not necessarily the UK’s.
Jersey had clearly taken a lead in the administration of the early stages of the tender exercise, including drafting the documents, but it had not led to Jersey ‘running the show’ overall and had not crossed the line into Guernsey not making its own decision.
Scores were awarded to aspects of the bid provided by the tendering parties and Gama had taken issue with some of those it had received compared to 247, claiming that it had been unfair that the other party had been given a higher score for not only meeting but exceeding requirements more than Gama did in relation to a particular criterion.
But Mrs Marshall said that demonstrating a better capability was something that could legitimately lead to a higher score since it increased the States’ confidence in that aspect of the bid.
The parties involved have now gone away to consider their response to the judgment, with Gama having the opportunity to lodge an appeal if it wishes to.
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