It will also be allowed to argue the case of an apparent bias in the process as it brings a judicial review against Jersey’s Economic Development Minister Kirsten Morel.
Details of the specific grounds on which its appeal will proceed through the Jersey Royal Court were published this morning.
Jersey ended the joint process after Guernsey had selected Brittany Ferries and eventually awarded its contract to DFDS.
In his judgement on whether the judicial review should be allowed to go ahead, Commissioner Matthew Thompson accepted submissions from Brittany Ferries that they were not given reasons about why the Minister had concluded there was no tender that was capable of meeting the requirements to accept in the joint process.
“The flaw in this reasoning is firstly that Brittany Ferries had been invited to take part in the Jersey procurement process,” his judgement says.
“For that process to be arguably fair, it was entitled to know what the concerns of the Minister were. By reference to the submissions of [the respondent’s Advocate] Mr O’Connell those appeared in particular to be a reference to the financial standing of Brittany Ferries. Yet neither the correspondence nor the affidavit of Mr [Andrew] Scate [Jersey’s senior responsible officer] or the material he exhibited sets out those concerns.”
In email exchanges with Jersey, Brittany “unequivocally offered to guarantee Condor Ferries’ performance of a Channel Islands ferry contract.”
“Brittany Ferries, based on the material before me, did not know what case it had to be meet in respect of its financial standing and why there were concerns about the guarantee offered (which was asked for in the draft concession agreement for the Channel Island Procurement Process).
“I did not regard it as a decision maker being in error to give feedback to a bidder on concerns about their bid, when the process is being modified or developed as long as there is equal treatment for all bidders. In other words, both Brittany Ferries and DFDS were both entitled to know about any concerns the Minister had about the bids they had made for a Channel Island Procurement Process.”
He said that Brittany’s case only just got over the threshold for giving leave on the ground of apparent bias.
“Had it been the sole ground I would have refused leave but when taken in conjunction with the failure to give reasons, I was persuaded that it was right to give leave on this ground in addition to the ground of procedural unfairness.”
Arguments in this area will centre on Jersey’s decision to change the tender rules for the Jersey only contract.
“I concluded that Brittany Ferries were able to contend that the change in process to alter the requirements which had led to a mandatory fail on the part of DFDS for the Channel Islands Procurement process was based on a predetermination.”
States of Jersey responds
After the publication of the judgement, the States of Jersey said it was “disappointed that Brittany Ferries have chosen to challenge the decision to designate DFDS as preferred bidder, but we respect the Court process”.
“Our priority has always been to ensure that the Channel Islands have the best possible ferry services, and the procurement process showed DFDS are best placed to deliver those services.
“We conducted a full and fair procurement process. The marking and evaluation were independently overseen, and DFDS won the bid by a large and clear margin. Jersey needs high-quality, good value, and resilient sea connectivity, and we are determined to deliver it.”
Information before the court showed DFDS scored 74% out of 100 and Brittany 55% out of 100 in the Jersey-only process for which KPMG were brought in as external evaluators.
There will be a further hearing before the Jersey Royal Court on 13th and 14th January.
“We will be robustly defending our decision and our right to enter into the right contract with DFDS for Jersey.”
The legal challenge has been brought against Jersey’s Economic Development Minister in his official capacity, not personally.