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Tender Evaluations

Tender Evaluations

The High Court recently handed down a judgment on an action brought by unsuccessful tenderer Woods Building Services ("WBS") to challenge a public procurement exercise conducted by Milton Keynes Council (the "Council"). The High Court held that the Council made various manifest errors in its evaluation of the tender and there were certain breaches of the principles of equality and transparency.

Background
The Council issued an invitation to tender for the award of a 4 year framework agreement for asbestos removal and re-instatement services. Although WBS' tender was the cheapest, European Asbestos Services ("EAS") was found to have obtained the highest overall score as a result of out-scoring WBS on the quality aspects of the tender. WBS consequently brought an action to challenge the procurement process claiming that the tender evaluation process was unfair and breached the general principles of equal treatment and transparency.

Judgment of the High Court
The High Court first noted the legal principles applicable to the evaluation of tenders:

  • Transparency; award criteria must be drawn up in a clear, precise and unequivocal manner.
  • Equal treatment; a contracting authority must treat all parties in the same way.
  • Manifest error; evaluation of tenders is a matter of assessment and a court can only disturb an authority's decision where an error has clearly been made.

The High Court highlighted that in this case the Council's evaluation of the tenders followed a strange course and the process produced almost no contemporaneous documentation or notes. For example, the notes on certain spreadsheets were extremely brief and did not explain the reasons why a particular score was given.

The High Court found, in particular, that EAS should have been given lower scores than granted due to its failure to provide certain information and the Council's failure to mark EAS down for its omissions constituted a manifest error and the Council breached transparency/equality obligations in the scoring of WBS' in the tender.

Therefore, the High Court concluded that as a result of the manifest errors in the tender evaluation process (and instances of a breach in its duties of equality and transparency) the total quality scores awarded to EAS should be significantly reduced and also that WBS' score should have been increased.

Mr Justice Coulson stated "it is for counsel to tell me what effect that has on the overall weighted scores but I am confident that this will mean that WBS outscored EAS so that there should have been a different result." The Court will hear submissions as to what relief WBS will seek in consequence.

EMW Comment

The case highlights the importance of contracting authorities, keeping contemporaneous records of the conclusions reached, and the reasons for each conclusion reached, for each participant during a tender evaluation process. Without such records, it may prove difficult to defend the scores awarded. The judgment also demonstrates that (in appropriate cases) the courts will conduct a careful analysis of the legality and fairness of such tender evaluations should an unsuccessful tenderer feel aggrieved.

Case: Woods Building Services v Milton Keynes Council [2015] EWHC 2011 (TCC)