Air Corps SAR

Mr. Simon Tye(“Mr. Tye”) gave sworn evidence on behalf of Bristow that Bristow is procuring five new helicopters and that it has to acquire and modify one fixed wing aircraft during the transition period.

Evidence was also provided from the helicopter manufacturer engaged by Bristow to the effect that the transition period amounts to a ‘very compressed lead-time’ and that standard delivery terms for such helicopters would allow aperiod of ‘in excess of 20 months from order’ before the delivery of the helicopters.

the fact that there are enhanced services which Bristow is to provide under the New Contract is not disputed. CHC’s only reply in relation to these additional enhancements is that its helicopters are larger, have more cabin space and can fly a longer range without refuelling,than Bristow’s helicopters. While not according undue deference, at this interlocutory stage,to the ‘fact’that Bristow’s helicopters have been approved by the expert evaluators who conducted the tender process, this is none the less a fact as much as what CHC says about its own helicopters is a ‘fact’ (in the sense that it is not controverted by Bristow). At this interlocutory stage therefore, this Court is not in a position to prefer one of these ‘facts’ regarding the helicopters, over the other. However, the fact that CHC’s helicopters are larger, have more cabin space and can fly longer without refuelling does not deflect from the fact that enhancements under the New Contract will not be available under the extended Existing Contract

It is relevant to note therefore that CHC, when it was looking to ensure that it would win the tender,was stating that it was under a legal obligation to suspend the service at midnight on 30th June,2025, and so that if it were not awarded the New Contract there was a ‘severe’ risk that there would be a ‘gap’ in the Service, which all parties agree must be avoided at all costs.

Yet, now that CHC has lost the tender, it is saying to this Court the exact contrary to what it said when it was hoping to win the tender, i.e. that it is in fact not legally obliged to suspend the Service, but rather that it is perfectly legal for it to provide the Service after midnight on 30th June, 2025.

Firstly, even if the legal challenge to the tender process was to be resolved within six to nine months, Bristow has provided uncontroverted evidence of the very complex and interdependent nature of the 8,000 tasks which have to be completed in the two-year transition plan. Accordingly, it is not a case of these 8,000 tasks being simply ‘shifted to the right’ as regards dates in an excel sheet. This is not disputed by CHC. Indeed,it claims in its written submissions that the scale of the work which has to be done by Bristow during the two-year transition period is ‘staggering’

In claiming that the balance of justice favours the continuation of the suspension, CHC puts particular emphasis on the fact that the helicopters which CHC use (the Sikorsky S-92A –“S92A”) are larger, have more cabin space and can fly a longer range without refuelling than the helicopters which Bristow will be using to provide the Service (the Leonardo AW189 –“AW189”).87.On this basis, CHC says that the balance of justice favours the continuation of the suspension since it is,in effect,claiming that CHC’s service is likely to save more lives than Bristow’s service.

In this regard, all the parties rely on the judgment of Akenhead J. in the English High Court decision in Solent at para. 38 that:“It would be unfortunate not to say tragic if even one person died or suffered unavoidable serious physical or mental deterioration as a result of unavoidable delays in the provision of the improvements planned by the new contract [....] I do not think that the Court should take risks with people’s lives and health”.

CHC says lives are at risk because,if this Court does not continue the suspension and allows the New Contract to be signed with Bristow, risks will be taken with lives since, amongst other things, the quality of Bristow’s helicopters are inferior to those of CHC’s, even though Bristow’s helicopters were approved by specialist evaluators who evaluated the tender for the Minister and even though they satisfy the requirements of the tender.

In this regard, in its letter dated 31st May,2023 to CHC, the Minister summarised the evaluators’ decision, at p,5,as follows:“In summary, [Bristow] provided a more comprehensive response that gave greater confidence  that  their  chosen  helicopter configuration  (including system 

27 integration, layout and associated equipment fit) was suitable for IRCG taskings[...]The [CHC] Submission did not provide enough assurance that 95% helicopter availability would be maintained throughout the life of the contract.While more maintenance personnel are to be employed, the total number may not be sufficient for an ageing fleet[...]In contrast, the Evaluation Team scored[Bristow’s]responses as Good, observing that [Bristow’s] fleet .... gives a high confidence in fleet resilience and thus achieving the availability target, although [Bristow]could have probably made more sophisticated use of the in-service data it has accumulated.”

Deference cannot be shown to expert administrative decision at interlocutory stage?

In particular, CHC claims that the interlocutory stage is not the stage at which this Court can show deference to the specialist decision makers(the evaluators)whose job it was to assess the respective merits of the tenders and who made the decision to award the New Contract to Bristow in the first place. This is because CHC says that an analysis of the decision which was made during the tender process (e.g. whether the Minister’s decision is vitiated by an error of fact or law)and so any deference to those expert decision markers, only arises when the substantive challenge to the decision is being heard and that deference does not apply when considering the question of whether the balance of justice supports the lifting/continuation of the suspension.

However, it seems to this Court that there is a difference between,on the one hand,showing deference to the decision of an expert decision-maker at an interlocutory stage, which CHC is objecting to, and, on the other hand, completely ignoring as one of the facts, when considering the balance of justice,the decision of that decision-maker,and instead relying solely on the averments of a losing tenderer, which CHC is, it seems, urging this Court to do.

At this interlocutory stage, in deciding where the balance of justice lies, this Court will not give due deference to the decision of the decision-maker. However,the fact that,after a prima facie valid tender process,expert evaluators considered the merits of the respective helicopters and opted for Bristow’s tender, is a fact which will be treated as any other fact, 

which weighs in the balance of justice, when deciding whether to lift the suspension or not.It is entitled to be treated as a fact to be weighed in the balance of justice, just as much as the fact that CHC has made uncontroverted averments that its helicopters are bigger etc than Bristow’s

In other words, this Court will not do, as seems to be implied by CHC, namely ignore the fact that there has been a decision by the expert evaluators and instead focus on certain uncontroverted averments to the effect that,for example,the S92A helicopter carries more passengers than the AW189 helicopter.Rather, this Court will consider those averments, which are those of a losing tenderer pointing out why its tender should have won,in conjunction with all the other facts, including the fact that the expert evaluators reached the contrary view.When it does so, this Court cannot conclude that the averments of CHC should be given greater weight than the other facts, so as to tip the balance of justice in favour of continuing the suspension.