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Marking of Public Tenders criticised by Court

11 November 2015 #Public Procurement #Dispute Resolution

One of the most interesting procurement decisions to come out of the court in recent months is that of Woods Building Services v Milton Keynes Council. 

The claim was brought by Woods Building Services (“WBS”) who disputed the decision of Milton Keynes Council not to award it an £8 million, 4 year single supplier framework agreement for the provision of asbestos removal services.  WBS was the incumbent provider and its tender had been the cheapest of those submitted (price accounted for 60% of the marks available and quality for 40%).  WBS argued that the Council’s tender evaluation process breached the Public Contracts Regulations 2006 (“the Regulations”) and in particular the general principles of equal treatment and transparency.  Further, they argued that the Council had committed manifest errors of assessment in awarding the scores. 

The judge agreed, expressing concerns that the tender evaluation process had followed “rather an unusual course”.  The bids had been scored by two evaluators, one of whom was a former employee of WBS.  This represented such a serious conflict of interest that he ought not to have been involved in the process at all.  After the initial marking of the tenders, a senior Council employee had been sufficiently concerned that the correct process had not been followed that he ordered it to be carried out again.  However, instead of reviewing the bids from scratch, a third evaluator simply reviewed the scores awarded by the original evaluators.  Although this resulted in some of WBS’s scores being changed, criticism was levelled at the fact that no separate evaluation had been carried out.  There were also very few contemporaneous notes taken to explain the evaluators’ decisions and those that were available merely noted a brief conclusion (rather than a statement of reasons) or paraphrased the scoring criteria. This the judge ruled to be “unsatisfactory”. 

Having made these observations the judge then decided to carry out his own evaluation of WBS’s tender and the successful bidder’s tender, substituting his own scores for each of the 12 quality questions.  In so doing, he found that the Council had committed manifest errors of assessment and that there were certain instances where it was in breach of its duties of equality and transparency.  Had the appropriate scores been awarded, WBS would have won the tender, and as such the judge set aside the Council’s original decision to award the contract to another bidder.

Having decided the claim in WBS’s favour, the court then had to consider what the appropriate remedy for WBS was.  WBS argued that the Council should be ordered to award the contract to them instead of the other bidder.   The judge disagreed.  Although the tender evaluation process had been so flawed that it would be inappropriate for a contract to be awarded out of it, the Regulations did not expressly provide for a contract award as one of the remedies available   and a mandatory injunction requiring the Council to award the contract to WBS would require exceptional circumstances in order to be justified.  There were no such exceptional circumstances here and accordingly the court determined that the appropriate remedy was for a re-run of the tender to take place.  WBS would receive damages for any losses incurred, to be assessed once the outcome of the re-run tender was known.

This is an interesting case because several elements of the tender process, although unsatisfactory, fell short of being sufficiently serious to amount to a breach of the Regulations.  However, the combined effect of these unsatisfactory elements was that the judge was more sceptical about the individual scores awarded than he might otherwise have been, and this is perhaps why he took the unusual step of remarking the bids himself and substituting his own scores for those awarded by the Council.  The case also provides a useful reminder of the importance of keeping detailed records of decisions made during a tender evaluation process.  In the event of a dispute it may be difficult to justify even the most well deliberated scores if all you have to rely on are the recollections of the individuals involved.

Clarkslegal, specialist Public Procurement lawyers in London, Reading and throughout the Thames Valley.
For further information about this or any other Public Procurement matter please contact Clarkslegal's public procurement team by email at by telephone 020 7539 8000 (London office), 0118 958 5321 (Reading office) or by completing the form on this page.
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