Explain Yourself!

The High Court of Justice in Northern Ireland has recently indicated that contracting authorities may be required to explain why particular criteria and weightings have been used in a tender process. Ceri Delemore examines the ruling.

Traffic Signs and Equipment Limited ("TSE") has successfully challenged a tender process for the award of 21 contracts for the creation of temporary road traffic signs and posts by the Department for Regional Development and the Department of Finance and Personnel in Northern Ireland. Whilst TSE was unsuccessful in relation to most of its claims, including that the Authorities had discriminated against and/or were biased against TSE, TSE persuaded the High Court that the Authorities were in breach of their duty to comply with the obligations of objectivity and transparency set out in the procurement rules in setting the evaluation criteria and weightings for the tender process.

The basis of the award of the contract was the most economically advantageous tender and the Authorities had used price (60%) and quality (40%) to assess this. However, the High Court held that the Authorities' decision to allocate 40% of the total available marks to a quality assessment required explanation because:

• the entire tender process was surrounded by concerns about the objectivity of the criteria used to assess quality
• the Authorities had required tenderers to have in place an accreditation scheme which, in the Authorities' own words, had effectively removed the need for a quality assessment; and
• the weighting of the quality criteria was so high that it effectively determined the allocation of some of the contracts and secured the award of those contracts to a tenderer who was, in broad terms, submitting higher prices than TSE.

The Authorities had failed to provide an explanation for the quality weighting and the High Court therefore ordered the setting aside of three affected contracts.

Both parties have appealed the High Court's decision. Whatever the result, this case is a timely reminder to contracting authorities to ensure that they can justify the criteria and weightings used to award public contracts. Choosing the most economically advantageous tender as the basis for awarding a public contract does not confer an unfettered discretion on contracting authorities as regards the specific criteria and weightings used, the same must be objectively chosen, transparent and non-discriminatory.

Ceri Delemore is a partner in Geldards' Commercial Team. She can be contacted on 029 2039 1712 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it..