26 May 2015 #Public Procurement
A recent High Court decision has emphasised the importance to contracting authorities of creating a clear document trail when evaluating tenders in accordance with the Public Contracts Regulations 2015.
It is a fundamental principle of European law that tenders must be conducted transparently and fairly. This is reflected in Regulation 18 (and in the equivalent provision under the 1996 Regulations, which were in force until recently) which provides that contracting authorities must treat bidders equally and without discrimination, and must act in a transparent and proportionate manner.
In Geodesign Barriers Limited v The Environment Agency, an unsuccessful bidder had brought a claim seeking damages for the Defendant’s alleged breach of the Regulations. The tender was for the supply of a temporary flood barrier system and it was scored on both price and technical criteria. The Claimant complained that the winning bidder should have been disqualified because its system did not satisfy one of the mandatory pass/fail requirements set out in the invitation to tender documents, and that in failing to recognise this, the Defendant had committed a manifest error of assessment.
After issuing its claim, the Claimant applied for an order that the Defendant must disclose papers evidencing its marking of the tender submissions. Opposing the application, the Defendant filed evidence explaining that the tenders had been considered by three evaluators. The evaluators held a meeting in person at which they decided whether each tender had satisfied the mandatory requirements. No written record of their decision was made at all. The evaluators then went on to score the pricing and technical criteria, but again, no proper written record of the scores awarded or the evaluators’ reasons for these was made. It was only subsequently, when preparing a document for debrief/feedback purposes, that the scores awarded to both the Claimant and the winning bidder were noted in writing. Copies of some limited manuscript notes were disclosed by the Defendant, but these were confusing and some were said to have been written “on the back of an old notebook”.
Mr Justice Coulson described the documents disclosed by the Defendant as “something of a rag-bag” and said he found the evidence that there were no proper contemporaneous evaluation documents at all to be “extraordinary”. This, he said, raised a significant question mark as to the transparency and clarity of the procurement exercise, and gave rise to a whole host of questions about the fairness of the process. Although he did not on the face of it consider the Claimant’s challenge to be a particularly strong one, this he said was balanced out by the fact that the evaluation process was, on the Defendant’s own case, questionable.
The decision acts as a reminder to local authorities conducting tenders that it is essential to keep clear and detailed written records of the evaluation process and the reasons for the decisions made. The absence of such records will hinder the robust defence of claims brought by unsuccessful bidders.