When a bidder is told it has lost out on a tender, it can sometimes feel aggrieved and seek to challenge the process. As proceedings must be commenced within 30 days of when they knew, or ought to have known of the grounds for bringing a challenge. They will often focus on recent steps in the process, and that includes evaluation.
We have seen a growth in the percentage of procurement disputes focusing on how bids are evaluated. These include, by way of example;
Environmental waste control LTD – v- Lancashire County Council  EWCA Civ1381- where the court considered evaluators taking into account irrelevant criteria which might “subconsciously infected their evaluation”.
Letting International Ltd -v- Newham London Borough Council  EWHC 1583 (QB) not disclosing all contract award criteria and weighting in tender documentation and by failing to apply the award criteria which it did disclose.
RPS Consulting Engineers Ltd –v- Kildare County Council  IEHC 113 – The judge was critical of the level of detail in the reasons and described them as “largely content free platitudes” and as “a flimsy and threadbare attempt to explain the decision”.
So just what can a contracting authority do to limit the opportunities for such a challenge?
The EU Directives and the national regulations on procurement contain no express reference on how a tender evaluation procedure is to be carried out. However, they do provide that “Contracting Authorities shall treat economic operators equally and without discrimination and shall act in a transparent and proportionate manner”.
There are further Regulations on confidentiality, conflicts of interest and on informing candidates of the reasons for any decision (55) that also clearly touch on evaluation.
However, in terms of evaluation the most important are the principles of procurement transparency and equal treatment.
Transparency revolves around ensuring that tenders are aware from the outset of the criteria on which they shall be judged, informing tenderers of decisions reached and basis of those decisions. It also goes to the removal of discretion and subjectivity; the evaluation must be based on objective criteria that are known to bidders in advance.
The principle of equal treatment has been defined by the CJEU “Fabricom” case as follows:
“…. the equal treatment principle requires that comparable situations are not treated differently and that different situations are not treated similarly unless such a difference or similarity in treatment can be justified objectively”.
The first part of this definition is well known, but it might be that evaluators often forget the second.
Practical steps a Contracting Authority should take include;
Have guidelines on evaluation that will help demonstrate to a judge that you know what you are doing and a have a procedure in place to ensure that the rules are followed.
Set all criteria out in the tender documents so all Reasonably Well Informed and Normally Diligent Tenderers will understand them in the same way.
Appoint evaluators that have competency to mark the bids so that it is clear that the bids were treated fairly and equally.
Train assessors on some procurement law basics so they have an understanding of the Conflicts of Interest, Confidentiality, Equal Treatment, Transparency and Record Keeping. This should not take more than 2 hours.
Have a conflict of interest and confidentiality policy that evaluators are asked to sign up to.
Keep records of the evaluation process that clearly and concisely set out the reasons for any decision reached or any changes of view or minds of the evaluators during moderation.
Check that the marks awarded match the reasons so that a low mark is not awarded with glowing reasons, or vice versa.
Check the reasons given against the published criteria so no claim of undisclosed criteria can be made out.
Published 20 August 2021
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