NDA Procurement Dispute – Maintaining the Evaluation Audit Trail

We have covered the recent court case concerning the Nuclear De-Commissioning Authority a couple of times already. The NDA lost a case brought by Energy Solutions, which was one of the incumbent suppliers and lost a major procurement for work concerned with cleaning up old reactors.

Energy Solutions claimed that the procurement process was unfair and illegal, and Justice Fraser agreed with them in a long and fascinating judgement. Damages are now being assessed and are likely to be substantial.

One issue in the case was around the audit trail for the evaluation process. Now anyone involved in public procurement knows that you have to be able to explain to bidders (and the courts if it comes to that) why you gave each response to a question in the tender the scores you did during that process. You don’t want to provide a long essay for every answer; too much detail might actually provide some “hostage to fortune” for disgruntled bidders, something that a disappointed supplier might pick up on and use against you. On the other hand, it has to be enough to give a recognisable explanation as to why an answer scored 3 out of 5 (or whatever).

In the NDA case, we saw an unusual situation. Bidder responses were marked by an expert panel, who gave a consensus score. However, the evaluation lead then took it on himself to go back into the eSourcing system and change a number of those scores. He then contacted the panel members, and apparently they were all happy with that fact he had done this.

So a few warning bells will be sounding in your head now, we suspect. That is a somewhat irregular process, you’re thinking. But as long as you provide a strong justification for doing that re-marking, and explain exactly where the initial evaluation went wrong, and why the new mark is in fact more appropriate, then that’s probably OK.

The problem is, that was not the process the NDA followed. Amazingly, there was very little audit trail or explanation as to why the scores were changed. Witnesses in court did not seem capable of giving much explanation for just why or how that happened. That was then one of a number of key “unfairness” issues that led to the challenge and the ultimate finding against the contracting authority.

The whole sad story is pretty unbelievable – how could an organisation of this size, advised by a major law firm (Burges Salmon), make such a pig’s ear of the process? But if you want a more detailed discussion of this particular issue, we have gone into more depth on our Public Spend Forum Europe website here – and we’ll be back to look at other aspects of this case shortly.

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