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Woods case a reminder and warning for contracting authorities

Wednesday October 7th, 2015

It may go without saying that contracting authorities need to ensure that they adhere to the principles of transparency and equal treatment in tender processes. However, a recent court decision has once again reinforced the need for contracting authorities to consider taking more care in evaluating tender bids against award criteria.

In Woods Building Services v Milton Keynes Council, the court upheld a challenge by an unsuccessful bidder and set aside a contract award decision for breach of the procurement regulations.

Kelly Sleight

Kelly Sleight

The decision should serve as both a reminder and a warning: a reminder to ensure that the principles of transparency and equal treatment are adhered to, including keeping accurate and precise records; and a warning that the court will use its power to interfere with a contracting authority’s discretion, where appropriate, and undertake a full evaluation of the contracting authority’s tender decisions.

Questions considered by the court

The court focused on two questions in determining the substantive claim:

  • whether there had been manifest errors in the contracting authority’s evaluation; or
  • whether the contracting authority had breached its obligations of transparency and equal treatment of bidders.

The unsuccessful bidder submitted that as a consequence of the above, there were fundamental flaws in the tender evaluation and that, had the tender evaluation been properly carried out, its tender would have been accepted.

Manifest error

In assessing whether there had been manifest error in the contracting authority’s tender evaluation, the court determined that the concept broadly equated to the Wednesbury concept of unreasonableness. This concept is one of the grounds for judicial review and looks at whether a decision either fails to take account of relevant factors that should be taken into account and/or takes account of factors that ought not to be taken into account. The concept also exists where an authority’s decision is so unreasonable that no reasonable authority could ever make it – including manifest error in the decision-making process.

The court in Woods noted that an error could be determined as manifest by its materiality and not on whether it would be immediately apparent to a layman.

Transparency and equal treatment

The court considered established and previously accepted principles of transparency and equal treatment to evaluate the award criteria and the contracting authority’s approach in its tender evaluation.

The power to interfere

In Woods, the court considered that the manifest errors in the tender evaluation required rectification. The court held that the unsuccessful bidder was entitled to damages following the court’s evaluation of the tender documentation. Contracting authorities should take note of the court’s power to undertake an extensive review of tender evaluation decisions. The court scrutinised the scores awarded by the contracting authority in determining whether there had been any manifest errors or whether the evaluation was consistent with the principles of transparency and equal treatment.

 

 

Kelly is a Solicitor with Harper Macleod LLP and can be contacted at kelly.sleight@harpermacleod.co.uk

 

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Gov Opps’ training partner, PASS (Procurement Advice Support Service) runs relevant procurement training events for the public and private sector. To view the brand new schedule of events, click HERE.

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