Weighty task
Tender evaluation is widely seen as an area of significant legal risk for contracting authorities. Matthew Mo looks at how they can avoid the pitfalls and get it right.
When we asked: “What do you consider to be the greatest area(s) of legal risk to your procurement process?”, the vast majority of respondents referred to the evaluation process. The responses included comments such as:
• “Award criteria and the evaluation of tender process”;
• “Incorrect/unclear evaluation criteria and/or weightings”;
• “Objective evaluation of bids and a transparent evaluation model”;
• “The award process”;
• “Evaluation methodology and standstill”;
• “Clarity and consistency of published documentation together with clearly defined award criteria”; and
• “Failure to follow process correctly”.
We have already mentioned in a recent article, Procurement – evaluation processes off the rails (at www.bevanbrittan.com/articles/Pages/Procurementsofftherails.aspx), that we are advising on an increasing number of procurement challenges stemming from flawed evaluation processes. The most common areas of risk arising from tender evaluations may be broadly summarised as:
• undisclosed and/or unlawful award criteria, weightings and evaluation methodology;
• incorrect application of the award criteria and methodology; and
• failure to properly debrief unsuccessful bidders.
An open process
In order to conduct an open and transparent tender process, it is important for bidders to know at the outset how their tenders will be assessed and scored so that they can prepare their tenders in an appropriate way to best meet the procuring entity’s requirements and priorities.
The Public Contracts Regulations 2006 (as amended) require the award criteria and associated weightings to be disclosed in the OJEU contract notice and/or the tender documents. In setting their award criteria, authorities must ensure the award criteria:
(i) are linked to performance of the contract;
(ii) are not selection criteria which assess financial standing or professional ability; and
(iii) comply with EU law including the Treaty principles of transparency, equal treatment and non-discrimination.
Case law has established that sub-criteria and weightings should also be disclosed. The case of Mears Limited v Leeds City Council [2011] EWHC 1031 confirms that authorities should disclose all qualities which may affect bidders’ preparation of tenders. Furthermore, even if there are no associated weightings, if the authority purports to place emphasis on any quality aspect which is not reasonably foreseeable and predictable to a well-informed bidder, this emphasis should also be made clear to bidders as it could constitute a ‘sub-criterion’ required to be disclosed for the purpose of the procurement rules.
It may be difficult at times to ascertain when a sub-criterion will come into being, however, what is clear is that failure to disclose all qualities that the authority seeks to reward may expose the authority to potential procurement risk.
Clear understanding
In addition to dealing with the award criteria, our survey results indicate that the assessment of tenders poses further potential difficulties. Respondents to our survey highlighted that there is a “lack of non-procurement staff awareness”, “evaluation procedure not understood/followed by staff” and “… failure of client procuring departments to appreciate the importance of getting the evaluation process right”.
In the case of Resource (NI) v Northern Ireland Courts and Tribunal Services [2011] NIQB 121, the court expressed that: “…meetings of contract procurement evaluation panels are something considerably greater than merely formal events. They are solemn exercises of critical importance to economic operators and the public…”.
In our experience of acting for clients in both the private and public sector, we concur that the merits of a case in a procurement challenge often hinge on whether the evaluation process was undertaken in accordance with the disclosed methodology in a very literal way and so there are good reasons to carry out the assessment of tenders thoroughly to safeguard the robustness of the award decision.
Panel decision
The evaluation panel should be mindful not to take into account proposals which fall outside of the authority’s requirements in its tender assessments and should keep a full audit trail of the evaluation process and the scores awarded.
Some practical tips are:
• engage appropriately skilled officers and advisers as early on as possible;
• take time to prepare and scope the contract opportunity;
• ensure that the award criteria are relevant and proportionate to the contract and reflect market reality and industry dynamics;
• ensure that all qualities sought to be evaluated are clear and obvious from the award criteria;
• ensure that the authority is able to identify the most suitable bidder using the evaluation model; and
• ensure that the evaluation model is suitable, can be understood by bidders and can be applied by evaluators
As you will see from the survey results, you are not alone if you have concerns over the tender evaluation process. But, in light of the potentially severe consequences of getting it wrong and the trend for increasing procurement challenges, now is the time to take positive action to implement any corrective measures to safeguard your organisation and your procurement processes.
Matthew Mo is an associate at Bevan Brittan.
