Colas Limited, Volkerhighways Limited and AECOM Infrastructure & Environment UK Limited (together acting as an unincorporated joint venture (“CVU”) entered into a framework agreement with the defendant Transport for London (“TfL”) in 2013 for the provision of highway maintenance services in central London (“the Framework Agreement”). The Framework Agreement made provision for the parties to enter into Call Off Contracts in respect of the services to be carried out by CVU during the eight-year term of the Framework Agreement.
A schedule of rates agreed between CVU and TfL included rates for roadworks, that would be ordered by a scheme of ‘Task Requests’ that required permits to allow CVU to carry them out. Permits could be issued with conditions that included work restrictions affecting the cost of performing the works. The extent of such restrictions could not be determined when the schedule was agreed and such restrictions were different from those provided for in the Call-Off Contract. CVU applied for a declaration that the schedule of rates they had agreed with TfL did not include projects that required permits containing extra restrictions on the carrying out of the works. TfL applied for a declaration that the rates included such works.
The issue for determination was the contractual allocation of risk between the parties in respect of restrictions imposed by the permits required for the works on a proper construction of the Framework Agreement and the Call Off Contract against the background regulatory scheme.
Mrs Justice O’Farrell declined to make the declarations sought by CVU and made the declaration sought by TfL, namely, that CVU is not entitled to submit prices within its Task Responses on the basis that no item on the price list corresponds to the work or services for the proposed task, insofar as the relevant Task Request is subject to permit restrictions that change the conditions under which the works must be carried out from those provided for by the terms of the Call-Off Contract.
David Streatfeild-James QC Patrick Clarke (instructed by Fenwick Elliott LLP) for the Claimants
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18 April 2018
