Public Procurement Beware! Judges Start Scoring Your Bidders’ Tenders!

There was a fascinating legal case in July that could have big implications for public sector procurement. And whilst with our taxpayer's hat on, it could be seen a very positive, to public procurement staff and others involved from the buy-side, it will raise some worrying issues! We are going to cover the case in more detail over on our Public Spend Matters Europe website next week, but in summary, it involves a challenge from a supplier to a contract award decision. That centred on what the supplier felt was unfair scoring of their tender and that of the winning bidder.

It follows another case which we recently covered here from Bristol where the details of the evaluation process were examined closely by the court. But this time, the judge has gone even further in that examination.

But it was not just that point that made this case unusual. Top recap, earlier this summer, Mr Justice Coulson set aside Milton Keynes Council's decision to award a contract for asbestos removal to European Asbestos Services (EAS). He found that the authority had made “a number of manifest errors” and breaches of equality and transparency requirements under public procurement rules. It was the first time a judge in an English court had set aside a public body’s contract award decision under the 2006 Public Contract Regulations.

The court has now decided that the Council will have to pay damages, as well as re-run the procurement process. So that in itself makes the case noteworthy, but what really struck us was the way in which the judge got stuck into the detail of the tender evaluation process.

Unsuccessful bidder Woods had challenged the initial award decision. In hearing the case, Mr Justice Coulson determined that Milton Keynes Council's evaluation of 8 out of the 12 award criteria had been unlawful. After making adjustments to the evaluation, he said that Woods had "provided the best tender," according to the most recent judgement in the case.

Typically the courts, and judges, have been reluctant to get too far into the details of tendering processes, particularly evaluation and scoring decisions. So if there was an obvious issue around a change in process, or one supplier having information that another did not, then the court would be interested. But generally, judges did not want to get into the fine detail of whether a particular bid response scored 3 out of 5 when it should have scored 4 out of 5.

Until now... because that is precisely what Coulson did in this case. He got into a level of detail we have rarely seen before, doing in effect his own detailed marking of the two bids, which led him to question how the winning bid for instance scored "10 out of 10" on a particular response when in his views, they should have scored zero as they had failed to meet the requirements (which according to the scoring definition should have led to a zero score). The judge also criticised the contracting authority for having limited information explaining how scores were arrived at.

So, fascinating stuff, and if this is taken as useful case law in future challenges, it will put a lot more pressure on buyers to make sure scoring and evaluation processes are well thought out, that marking is truly objective, related to the definition of requirements and follows the defined scoring process, and that an excellent audit trail is maintained to explain how the scores awarded were arrived at.

That will all be quite a challenge for many organisations, we suspect! And as we say, look out for more detailed coverage shortly on PSME.

Voices (3)

  1. Paul Howard:

    Brings a whole new (and unexpected) meaning to Caveat Emptor!

  2. Phoenix:

    Brilliant. What an excellent use of the judicial system. No-one wants to deny bidders the chance to correct a genuine manifest error but now we’re going to get every losing bidder arguing the toss over every score, with the threat that some judge might fancy going through the whole thing in the courts. This job will soon be impossible.

    1. Dan:

      The judge didn’t bother changing the scores everywhere he disagreed with them (for example, where he thought they should be scored 4 but they were actually scored three – he rightly accepted that there is some scope for subjectivity), he only changed the scores where there was a manifest error. Safest thing to do is not make any manifest errors!

      In this case, it was blatantly obvious what the council was trying to do.

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