Read, check, repeat: the key to avoiding procurement errors

Juli Lau and Gonzalo Puertas outline their key takeaways on a procurement judgment from the Technology and Construction Court.

On 20 June 2022, the Technology and Construction Court issued its judgment in Braceurself Ltd v NHS England [2022] EWHC 1532 (TCC).

Background

The case considered a nationwide re-procurement for orthodontic services where the defendant misunderstood the claimant’s answer to one of the competition questions and this resulted in its bid being unsuccessful with a 2.5% difference. Specifically, one of the defendant’s evaluators mistook the claimant’s offer of a stair climber for that of a stair lift which could have caused accessibility difficulties for disabled patients. The other evaluators then accepted the aforementioned misunderstanding and accordingly reduced their scores in moderation. The case initially concerned an application for the contract award to be set aside, but was later amended to be for damages for breach of equal treatment, transparency and manifest error under the Public Contract Regulations 2015.

Judgment

The Court adopted Fraser J’s approach in Bechtel Ltd v High Speed Two (HS2) Ltd [2021] EWHC 458 (TCC) where it was stated that challenges to evaluations will only be upheld if there has been manifest error, considering the margin of discretion available to the decision-maker. According to the judgment, manifest error is another way of expressing irrationality and proving it is a high hurdle as procurement law does not impose a counsel of perfection upon contracting authorities and it is not enough to show that a court would have reached a different view from the expert evaluators.

The Court was satisfied that had the defendant properly understood the basis of the bid, the claimant would have been the winning bidder. Thus, the Court re-scored the bid in favour of the applicant under manifest error grounds. The Court deferred its decision on damages until further submissions are made to determine whether the breaches were “sufficiently serious” or not, therefore the Court’s assessment of the magnitude of the ‘manifest error’ remains to be seen.

In addition to being one of only a few examples of the English courts finding ‘manifest error’ in a contracting authority’s evaluation and overriding its scores, the case will be of interest to those who are familiar with the following approaches, which the claimant had additionally claimed to breach the procurement rules, but which the Court deemed to be compliant:

• The evaluation questions were derived from the Service Specification;
• The use of different evaluators for marking different questions – this was found to reflect the specific expertise needed for each different subject matter and did not amount to an inconsistent evaluation approach;
• A non-exhaustive list of bullet-points within each evaluation question, without sub-weighting attached to each point – the Court was satisfied that evaluators could provide a composite score and that to take a more prescriptive approach would have not allowed other relevant factors to be considered; and
• The notes made at moderation meetings were not a verbatim record of proceedings, but were found to be sufficient to capture the essence of arriving at an agreed score.

Key Takeaways

In addition to confirming the now well-established principles concerning ‘manifest error’ in public procurement evaluation, this case serves as a reminder of the importance of evaluators being confident that they understand the parts of the bids allocated to them, and of ensuring that where different scores materialise as between evaluators, these should be carefully discussed and probed during moderation. In our experience, a moderation chairperson could help to ensure that these steps are robustly taken.

The case also provides welcome judicial approval for commonly-used pragmatic approaches to: complex evaluation criteria with multi-faceted requirements, composition of evaluator teams, and the record of moderation meetings.

We advise contracting authorities on all manner of issues relating to public procurement and our experts are on hand to guide authorities through the intricacies of running a procurement, setting up evaluation and moderation processes, and responding to procurement challenges.

Juli Lau is a Legal Director and Gonzalo Puertas is an Associate (Peru Qualified) at Sharpe Pritchard LLP.

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