Bristol Council – Court Allows Procurement Challenge to Continue

Thanks to Stephen Ashcroft for drawing my attention to a recent procurement court case that is worth any practitioner in the public sector noting.

Bristol Missing Link Ltd ("BMLL"), the incumbent supplier, challenged the procurement of a significant contract for domestic violence and abuse support services in Bristol. The defendant, Bristol City Council wants to award the contract to another tenderer, Refuge. Because of the challenge, the Council had been stopped from entering into the proposed contract, so had applied to the court the lift the ban and be allowed to place the contract. However, the judge refused and said the matter must go on to a full hearing.

The central issues hinge around the evaluation process – whether the scores given to the bidders were unfair, and in particular, the moderation process which appeared to mark down BMLL compared to the scores given by the individual markers. We have written a longer article about the issue on our Public Spend Matters Europe website here. So we’ll just summarise the key points for now.

1. The judge was not impressed with the way the council had been very selective in terms of what information it had disclosed to the unhappy supplier.

2. He was also unimpressed that there was very limited evidence from the tender evaluation team. Here are his exact words.

“There were five evaluators, and a sixth person who was named and described as a procurement specialist, who was giving advice and guidance to the Council. Surprisingly, there is no evidence from her. The names of four of the five evaluators have been redacted ... there is no evidence from them either. There is evidence from Ms Griffiths, the fifth evaluator, but her statement was short, and was only provided in reply to the evidence from Ms Metters. There has been no explanation as to why those actually involved in the process have not given evidence”.

I wonder who the “procurement specialist” was? I have played that role in public procurement projects and it really is not good if your project ends up in Court ...

3. BMLL claimed that the whole moderation process was intrinsically unfair – the judge did not seem to agree with that, but did agree that the issue of how the scores were moderated was relevant and worthy of further discussion.

4. He also commented unfavourably on the lack of documentation supporting the moderated decisions on scoring “there was a vital moderation meeting about which the court has no evidence at all”.

So what does this suggest for other contracting authorities? Withholding information from bidders may be looked at unfavourably is one point. Then, the moderation process is fine, but it needs to be carefully documented, is perhaps the most obvious comment. Where it leads to big changes in terms of the final marking versus individual markers’ scores, that needs to be explained and handled carefully. For more on that specific topic, see our full article over on PSME!

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First Voice

  1. Dan:

    Easily done, sadly. One person in the panel scored them a three. That person was sufficiently senior that, even though all the other people in the panel had scored them higher, they didn’t argue. Its fairly common to have a panel composed of a director who knows what they want and another handful of subordinates who dare not speak out.

    The procurement specialist should have advised against it though, that was the whole purpose of them being there!

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