Scottish Borders Council disqualified potential bidders for the £27 million project to build a waste treatment plant at Easter Langlee because their technology was not "mature" enough before selecting a preferred company whose knowledge was also untried and untested, according to the specialist brought in to negotiate the original contract.
Consultant Barry Phelps also warns the cancellation of the 24-year contract between the council and New Earth Solutions means the Borders could be four years away from having a facility operational, something the region could have had in late 2012.
SBC and NES signed a deal in 2011 for the development of a Mechanical Biological Treatment (MBT) plant with the possible addition of an Advanced Thermal Treatment (ATT) facility within eight years of the MBT's completion provided the technology was robust enough.
But in late 2012 councillors approved an amendment to the multi-million pound contract with NES so that both phases of the scheme were to be built together even though NES's ATT technology had yet to prove itself.
Meanwhile, information just released by the Scottish Environment Protection Agency (SEPA) reveals the reasons why New Earth was unable to obtain an operating certificate for the proposed ATT which they first applied for in May 2013. Discussions over unresolved environmental issues were still continuing in January 2015 before NES withdrew its application and the entire project collapsed.
In the course of the protracted negotiations SEPA issued NES with three separate so-called Further Information Notices seeking assurances on a number of topics.
The response to the second Further Information Notice was not fully accepted by SEPA. This was mainly due to only limited emission data from the combustion of the plant's syngas (synthetic gas) and composition data for the syngas having been provided, as well as concerns over the potential noise impact of the whole installation given its close proximity to housing.
NES was advised by SEPA in October 2014 that they could withdraw the part of the application relating to the renewable energy facility whilst they obtained the additional data from a similar pilot plant in England. But NES confirmed they wished to proceed with the application as applied for i.e. the renewable energy facility as well as the recyclate recovery and refuse derived fuel manufacturing facility.
A third Further Information Notice was therefore issued in December 2014 to request the necessary emission data, syngas composition data and other information to support the applicant's ‘End of Waste justification’ for the storage and subsequent combustion in gas engines of the purified syngas from the pyrolysis stage of the process.
The applicant was required to provide a method statement for responding to the Notice by 16 January 2015. The method statement submitted did not fully cover the information required. SEPA were in the process of discussing this with the applicant when it was informed of the decision to withdraw the application for variation of the consent in February 2015.
In addition to the syngas issues, SEPA was also awaiting confirmation of dates for a meeting to discuss the outstanding concerns on noise. The meeting had not be arranged when SEPA were told of the withdrawal decision.
Before this response from SEPA to a Freedom of Information request, Mr Phelps told us: "Some of the bidders were disqualified from the procurement as their technology was not mature enough. SBC essentially amended the contract to accept a technology that was also not mature in its capability, thus not treating all bidders equally.
"If the EU were to investigate the contract amendment and the consequences of how this has distorted competition, SBC may find the variation being overturned and could receive a substantial fine. NES would then in effect have to build the MBT or compensate SBC for any losses under the terms of the contract."