This article is an excerpt from the 2021 edition of The Art of Tendering: A Global Due Diligence Guide, which is available for purchase.
In its February 2009 decision in Federal Security Services Ltd v. The Northern Ireland Court Service, the High Court of Justice in Northern Ireland, Queen’s Bench Division, ruled that the imprecise drafting of a mandatory evaluation requirement justified the cancellation of a tendering process. The dispute dealt with a tendering process for the award of a security services contract for the 23 courthouses in Northern Ireland. As the Court noted, the government decided to cancel its tendering process due to an ambiguity in its evaluation rules since it identified certain security licensing requirements as both a mandatory compliance requirement and a scored evaluation criterion:
In brief compass, in 2006 the Northern Ireland Court Service (“Court Service”), the responsible public authority concerned, initiated a competition designed to lead to the award of a new contract for the provision of the aforementioned services. The Plaintiff was one of several undertakings which tendered for the contract. In the events which occurred, Court Service aborted the competition. Its decision was conveyed to the Plaintiff by letter dated 8th December 2006, in the following terms:
… We have come to the conclusion that the instructions and statement of requirements issued to tenderers were insufficiently precise regarding the requirement to hold a licence to provide security services. This was included in the Statement of Requirements as a mandatory requirement. However, tenderers were also informed that criteria, including mandatory requirements, would be scored and weighted. On reconsideration, we should have provided that the statutory requirement to hold a licence under Schedule 13 to the Terrorism Act 2000 at the time of tendering was a pre-requisite without which tenders would not be further considered, rather than including it as one of a number of criteria which would be scored and weighted. The criteria were expressed in a way that could lead to an inconclusive answer on an issue which was in fact vital to the process.
Having given the matter careful consideration, we have concluded that the proper course is to abandon the current procedure and initiate a new procedure for the award of this contract.
The second-placed bidder, Federal Security Systems Ltd, challenged the decision to cancel the bidding process, claiming that the cancellation was a breach of applicable procurement rules, including domestic procurement regulations and European Union law. By way of background, the first-placed bidder did not have the required licensing at the time of bid submission, so Federal Security Systems would have been top-ranked for award had that bidder been disqualified as non-compliant. However, the government decided to cancel and re-tender the contract opportunity, and Federal Security Systems sued to challenge that decision.
As the Court summarized, the matter turned on the duty to disclose transparent evaluation criteria and on the constraints regulating the right to cancel a tendering process, as defined by leading European and domestic court rulings:
RELEVANT EUROPEAN AND DOMESTIC JURISPRUDENCE
The judicial decisions, both European and domestic, which fall to be considered in order to resolve the issues in these proceedings essentially belong to two streams. The first of these streams provides guidance on how the principles of transparency and equal treatment impact on the information furnished to tenderers about the criteria and weightings to be applied in the contract award decision. The second stream of jurisprudence is concerned with the principles and constraints which govern a decision by the national contracting authority to discontinue a contract award competition and/or to recommence afresh.
With respect to duty to disclose contract award criteria, the Court cited the leading European and United Kingdom cases regarding the equal treatment of bidders and transparency of the bidding process. As the Court summarized, these principles recognize the need to disclose criteria with enough detail to enable all bidders to prepare their bids, while prohibiting the omission of criteria that, if known to bidders, would influence the preparation of those bids. In its overview of the leading cases, the Court first summarized the principles established by the decisions of the European Court of Justice:
The issue of undisclosed contract award criteria was considered by the European Court of Justice in Universale-Bau and Others [2002] ECR 1–11617. The Court ruled in favour of the tendering party. It its judgment, it stated:
The principle of equal treatment, which underlies the Directives on procedures for the award of public contracts, implies an obligation of transparency in order to enable verification that it has been complied with…It follows…that the procedure for awarding a public contract must comply, at every stage, particularly that of selecting the candidates in a restricted procedure, both with the principle of the equal treatment of the potential tenderers and the principle of transparency so as to afford all equality of opportunity in formulating the terms of their applications to take part and their tenders …
[the Directive]…imposes on the contracting authority the obligation to state in the contract documents or in the contract notice all the criteria it intends to apply to the award, where possible in descending order of their importance…The requirement thus imposed on the contracting authorities is intended precisely to inform all potential tenderers, before the preparation of their tenders, of the award criteria to be satisfied by these tenders and the relative importance of those criteria, thus ensuring the observance of the principles of equal treatment of tenderers and of transparency.
To like effect is the decision of the European Court in ATIEAC [2005] ECR 1 – 10109: see paragraphs [22] – [31] and, in particular, paragraph [28]:
Second, it must be determined whether the decision contains elements which, if they had been known at the time the tenders were prepared, could have affected that preparation.
The same approach is discernible in the subsequent decision of the European Court in Lianikis, Case C – 532/06: see paragraphs [36] – [40] especially.
In SIAC Construction –v- Mayo County Council [Case C-19/00] [2002] All ER (EC) 272, the European Court considered the interaction between the obligation of equal treatment and the principle of transparency, from the perspective of the formulation of contract award criteria. The Court stated:
The Court has held…that the purpose of co-ordinating at Community level the procedures for the award of public contracts is to eliminate barriers to the freedom to provide services and goods and therefore to protect the interest of traders established in a Member State in which to offer goods or services to contracting authorities established in another Member State…In accordance with that objective, the duty to observe the principle of equal treatment of tenderers lies at the very heart of Directive 71/305…More precisely, tenderers must be in a position of equality both when they formulate their tenders and when those tenders are being assessed by the adjudicating authority”.
The judgment then recalls that the Court had previously ruled that, in the determination of the most economically advantageous tender, it is permissible to include the reliability of supplies amongst the contract award criteria. It continues:
However, in order for the use of such a criterion to be compatible with the requirement that tenderers be treated equally, it is first of all necessary … that that criterion be mentioned in the contract documents or contract notice. Next, the principle of equal treatment implies an obligation of transparency in order to enable compliance with it to be verified…More specifically, this means that the award criteria must be formulated, in the contract documents or in the contract notice, in such a way as to allow all reasonably well informed and normally diligent tenderers to interpret the in the same way”.
The Court then turned to citing similar principles recognized by the courts in the United Kingdom, where the case law confirmed that the duty to ensure transparency of the tendering process includes the duty to disclose evaluation sub-criteria to enable responsive bids:
Belonging to the first stream of authority is the decision of the English Court of Appeal in Letting International –v- Newham London Borough Council [2007] EWCA Civ 1522, where the main issue concerned a failure by the contract awarding agency, a local authority, to disclose to tenderers the sub-weightings to be applied to the five published criteria. Compliance with the specification carried a 50% weighting. However, assessment of this compliance was conducted by reference to five aspects on which method statements had been required. To each of these aspects the authority had allocated a specific proportion of the overall score applicable to the criterion as a whole. These proportions varied between 5% and 17% and had not been published in the tender documents. The Court stated:
The point of publishing criteria and their weighting is to enable bidders to know the relevance importance which the contracting authority attaches to different aspects of the contract as a whole and to formulate their bids in that knowledge. If the published criteria are broadly defined, the adoption of sub-criteria is capable of frustrating their objective…Whether they do have that effect will depend on the circumstances of the case.
The Court concluded that an interim order should be made under Regulation 47(8)(a) of the 2006 Regulations. This was followed by the trial of the main action, reported at [2008] EWHC.1583 (QB). In his judgment, Silber J identified six issues for determination. The first and second of these were formulated thus:
The issues in dispute are:
(a) Whether Newham acted without the requisite degree of transparency required by Regulation 30 in failing sufficiently to disclose contract award criteria and weightings in advance by not setting out in advance the detailed criteria and sub criteria against which it actually marked the tenders, nor the way in which they were weighted relative to each other …
(b) Whether Newham acted without the requisite degree of transparency required by Regulation 30 in failing to apply those criteria which were disclosed and instead only awarding three marks out of five under each detailed award criterion for compliance with the specification, with the remaining two marks awarded for exceeding the contract specification.”
The judge rejected the argument that proper disclosure would not have altered the outcome. In response to the further argument that the Plaintiff tenderer ought to have anticipated some of the undisclosed award criteria, the judge stated:
I am unable to accept this submission. First, it means rewriting Regulation 30(3) so that a tendering authority is excused from disclosing weightings and criteria if the tenderer ought to have known them. In other words, this is an implied exception to this Regulation. Second, there is no basis in ECJ jurisprudence for such an approach…Third, in any event, even if Newham was correct, it has not come close to establishing that the relative weightings of the award criteria was in fact predictable to tenderers or ought to have been known to the Claimant…The fact that…it was possible to predict that customer service would be of considerable importance to Newham is immaterial. Predicting that some criterion might be used is not the same as predicting the precise weighting and if need be the relative importance or the precise nature of it. It was plainly a matter of judgment for a particular local authority as to what relative weight it would give to these different matters. After all, perfectly sensible arguments could have been adduced for attaching more or less weight to particular matters than Newham actually did. Finally, the rationale of requiring a contracting authority to state its award criteria in advance is to ensure that tenderers will not have to second guess what the award criteria are and how they will be weighted.
The judge described his conclusion as “an inevitable consequence of the overarching principles of transparency and equal treatment”. He continued:
For the purpose of completeness, I should add if, contrary to the above conclusions, the consequences of non-disclosure are material at all to the question of Newham’s liability, then … the issue can only be whether non-disclosure could (and not would) have made a difference to the preparation of the claimant’s tender.
As the Court further summarized, the transparency standards established under both EU and UK case law call for the clear definition of contract requirements and award criteria. Those transparency standards also limit the ability of government institutions to unilaterally change terms and conditions in contracting procedures:
Further guidance is found in the decision of the English Court of Appeal in Regina (Law Society) –v- Legal Services Commission [2008] 2 WLR, where the central issue related to a provision in a contract, devised by the Legal Services Commission, empowering the Commission to amend any of the contractual terms in certain circumstances. The Law Society brought proceedings, contending that this was incompatible with Regulations 4 and 9 of the 2006 Regulations. Parallel proceedings were brought by an affected firm of solicitors. Delivering the judgment of the court, Lord Phillips MR noted, firstly, the pronouncement of the European Court in Commission –v- French Republic [2004] ECR1 – 9845:
The principle of equal treatment of service providers, laid down in … the Directive and the principle of transparency which flows from it … require the subject matter of each contract and the criteria governing its award to be clearly defined.
Elaborating, his Lordship explained that the rationale of this principle is that it enables the contracting authority to satisfy itself that the principles of equal treatment and non-discrimination on the grounds of nationality have been observed; it facilitates competition; it enables the impartiality of procurement procedures to be reviewed; and it precludes any risk of favouritism or arbitrariness on the part of the contracting authority. Lord Phillips MR continues:
Fifth, it promotes a level playing field by enabling all tenderers to know in advance on what criteria their tenders will be judged and those criteria are assessed objectively…It is clear that, where amendments to the tender criteria or to the contract are made after an award to one party, such amendments are liable to infringe the principles in that, had the other tenderers been aware in advance of the terms of the contract actually put in place, this might have affected the terms of their tenders. Such amendments can violate the principle of transparency and of equality of treatment”.
Thus the test devised is as follows: If the tenderers had known in advance of the relevant information, bearing on the award criteria or the proposed contract, might this have influenced the terms in which they formulated their tenders?
With respect to the right to cancel a tendering process, the Court turned to the leading European Union cases which confirm that public institutions cannot arbitrarily terminate a process since cancellations are subject to fairness standards and must be based on serious grounds. As the European case law confirms, while a purchasing institution cannot be compelled to award a contract in every tendering process, that process cannot be arbitrarily terminated:
The second stream of authority, on which emphasis was placed on behalf of the Plaintiff, is identifiable in three decisions of the European Court of Justice. It concerns the approach to be applied to decisions by national contract awarding authorities to discontinue and/or recommence a contract award competition. This issue arose in Hospital Ingenieure –v- Stadt Wien [2004] 3 CMLR 16, where the contracting authority, following a process of inviting tenders and receipt thereof, purported to withdraw the invitations to tender. The reason proffered for this decision was that, following a study, results indicated that the service in question would have to be developed in a de-centralised manner, thereby rendering the award of the contract to an outside project leader unnecessary. A disappointed tenderer challenged this decision on a series of grounds. One of the questions referred to the European Court was “… whether national rules limiting the extent of the review of the legality of the withdrawal of an invitation to tender for a public service contract to mere examination of whether that decision was arbitrary is compatible with Directives 89/665 and 92/50”: see paragraph [56] of the judgment. Referring to the Remedies Directive (No. 89/665), the European Court observed that “… the scope of the judicial review to be exercised in the context of the review procedures referred to therein cannot be interpreted restrictively”. It concluded:
In those circumstances, it must be held that neither the letter nor the spirit of Directive 89/665 permits the conclusion that it is lawful for Member States to limit the review of the legality of a decision to withdraw an invitation to tender to mere examination of whether it was arbitrary.
The judgment of the European Court goes a little further, providing guidance on the correct approach to be applied by the reviewing court. In paragraph [40] referring to its earlier decision in Fracasso, the Court reiterates that –
…Article 8(2) of Directive 93/37 does not provide that the option of the contracting authority to decide not to award a contract put out to tender, implicitly allowed by Directive 93/37, is limited to exceptional cases or must necessarily be based on serious grounds.
Simultaneously, the Court affirms that “…there is no implied obligation on that authority to carry the award procedure to its conclusion”. The judgment continues:
It follows that, even though Directive 92/50 does not specifically govern the detailed procedures for withdrawing an invitation to tender for a public service contract, the contracting authorities are nevertheless required, when adopting such a decision, to comply with the fundamental rules of the Treaty in general and the principle of non-discrimination on the ground of nationality in particular.
As the Court noted, European case law also recognizes that the cancellation decisions made by public institutions during a bidding process remain subject to the fundamental principles of transparency and equal treatment:
Further guidance on the correct approach to be adopted is provided by the decision in Kauppatalo Hansel –v- Imatran Kaupunki [2004] 3 CMLR 17 where, having invited and received tenders for the award of an electricity supply contract, the Finnish authority discovered that to change the supplier would generate additional costs not previously appreciated, precipitating a decision to publish a new invitation to tender. A disappointed tenderer challenged the discontinuance of the original tendering procedure. The question to be decided by the European Court, in its preliminary ruling, was:
…whether Directive 93/36 must be interpreted as meaning that a contracting authority which has commenced a procedure for the award of a contract on the basis of the lowest price may discontinue the procedure, without awarding a contract, when it discovers after examining and comparing the tenders that, because of errors committed by itself in its preliminary assessment, the content of the invitation to tender makes it impossible for it to accept the most economically advantageous tender.
The court reiterated that a decision of this genre “…is still subject to fundamental rules of Community law and in particular to the principles laid down by the EC Treaty on the right of establishment and the freedom to provide services”. In paragraph [32], the court highlighted that the obligation to give reasons for a discontinuance decision is linked to “the twofold objective of exposure to competition and transparency” and is “… dictated precisely by concern to ensure a minimum level of transparency in the contract awarding procedures …”. The judgment continues:
Therefore the court held [in Hospital Ingenieure] that the contracting authorities are … required … to comply with the fundamental rules of the Treaty in general and the principle of non-discrimination on the ground of nationality in particular…Therefore the answer to the questions referred by the national court must be that Directive 93/36 needs to be interpreted as meaning that a contacting authority which commenced a procedure for the award of a contract on the basis of the lowest price may discontinue the procedure, without awarding a contract, when it discovers after examining and comparing the tenders that, because of errors committed by itself in its preliminary assessment, the content of the invitation to tender makes it impossible for it to accept the most economically advantageous tender, provided that, when it adopts such a decision, it complies with the fundamental rules of Community law on public procurement such as the principle of equal treatment.
The Court also emphasized the principle of proportionality, which recognizes that public institutions should strike a balance between the ends that they pursue and the means that they employ in pursuit of those ends. In the tendering context this means that a cancellation decision should only be relied on as a last resort when other less intrusive options are not viable to address any flaws encountered during a bidding process:
Separate mention should be made of the European law principle of proportionality, given the prominence which this occupies in the arguments advanced on behalf of the Plaintiff. One of the leading textbooks contains the following observation:
Furthermore, Member States are also bound by the general principles of Community law, including proportionality, when acting within the field of Community law. This is particularly the case when the national authorities seek to limit the free movement rights enshrined in Articles 28, 39, 43, 49 and 56 EC by relying on the mandatory requirement doctrine or on the Treaty derogations. In this context, the Court has consistently held that a rule which impacts on one of those rights not only has to pursue an interest consistent with Community Law, but it also have to be proportionate to that end. [Wyatt and Dashwood, European Union Law, 5th Edition, p. 243].
The concept of proportionality entails the notion of balance and an appropriate relationship between the end pursued and the means employed to achieve the end in question. By way of example, the European Court has described the contours of this principle in the following terms:
The court has consistently held that the principle of proportionality is one of the general principles of Community law. By virtue of that principle, the lawfulness of the prohibition of an economic activity is subject to the condition that the prohibitory measures are appropriate and necessary in order to achieve the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures recourse must be had to the least onerous and the disadvantages caused must not be disproportionate to the aims pursued”. [Case C – 331/88 (1990) ECR 4023, paragraph 13].
Similar formulations of the principle are readily found in other decisions of the European Court.
Turning to the issue of how the government defined the security licensing requirements that caused the dispute, the Court found serious ambiguities in the government’s use of the phrase “mandatory requirement”, which was not defined in the solicitation document. In fact, the Court found that the security licensing requirements could be interpreted as a “mandatory requirement” that attracted a pass/fail assessment, as a scored criterion that would inform the scoring and ranking of bidders, or as a post-award performance standard that applied at a later time after the contract was award to the winning bidder:
I consider the most significant features of the documents under consideration to be the following:
(a) Although the pre-qualification materials specifically address the topic of security services, they make no mention of a security licence.
(b) The same observation applies to the questionnaire which was to be submitted, at the preliminary stage, by those undertakings expressing an interest in tendering at the second, later stage.
(c) At the second stage, the instructions to tenderers stated, unambiguously, that a tender “… must be fully compliant with the requirements detailed in the tender documentation”. However, while an extensive number of these requirements carried the label “mandatory”, this adjective was nowhere defined.
(d) Tenderers were explicitly instructed, in paragraph [12], to outline fully “how and to what extent the mandatory requirements will be met”: the highlighted words are suggestive of a less than absolute standard and are to be contrasted with, for example, phraseology such as “in what manner”. This terminology was repeated in the instructions. Moreover, the words “will be”, repeated in this paragraph, could be construed as referring to the tenderer’s ability to comply with relevant requirements in the future (at the contract award stage), to be contrasted with compliance at present. Objectively, I find it unsurprising that one of the six tenderers considered it in order to reply to paragraph 3.2.2 by stating that it had taken steps which would secure a statutory security services licence at a future date.
(e) The instruction in paragraph 3.2.1 (“Tenderers are to provide information concerning their current application of the standards listed below. Where a contractor is working towards a standard this is to be stated”), considered in conjunction with the immediately succeeding paragraph 3.2.2, could be construed to the effect that present compliance with the standards listed was not an absolute requirement: rather, where appropriate, the tenderer would be entitled to outline steps being taken with a view to the future attainment of the standard/s in question. My observation at the conclusion of subparagraph (d) above applies fully in this context also.
(f) The instructions further stated that each of the evaluation criteria would receive a score of 0-10 and would then be multiplied by the weighting. Neither the scoring mechanism nor the related weighting mechanism is easily reconcilable with the notion of an absolute, rigid standard.
(g) In particular, if a requirement were of an absolute, inflexible nature one might expect that non-compliance would give rise to a score of zero and/or automatic disqualification. Conversely, one might expect compliance with such a requirement to automatically give rise to a pre-determined score – to be contrasted with a score to be extracted from a scoring range, a variable score, as in this instance.
(h) Under the heading “Mandatory Requirements”, the instructions unequivocally stated that both security services and ancillary services would receive a weighting of 5.
(i) Next, the instructions informed tenderers that, with regard to mandatory requirements, only those tenders achieving a score of 20 or higher would have the remainder of their bid evaluated. This could, conceivably, convey to certain tenderers that the pre-requisite to further evaluation of their bids was the attainment of a minimum score – to be contrasted with an inflexible precondition that compliance with a requirement such as the provision of a current, valid statutory security services licence must be achieved.
(j) The instructions further categorised possession of a “Secretary of State Certificate/Licence” as a mandatory requirement. However, this was followed by an instruction giving rise to two alternatives. The first alternative was to submit this authorisation with the tender. The second was to provide an explanation for failing to do so. Thus, in the same passage, language which might appear suggestive of a requirement of an absolute nature was followed immediately by words indicative of a relaxation or dilution.
(k) Certain provisions in the instructions to tenderers, in common with the stage 1 instructions, explicitly addressed the issue of disqualification, or ineligibility. However, there is no suggestion anywhere in the documents that non-possession of a valid, current statutory security licence would automatically disqualify a tenderer or render him ineligible.
The Court therefore concluded that the evaluation criteria were not drafted with enough precision to allow reasonably informed bidders to interpret them in a consistent manner and that those criteria therefore failed to meet the transparency standards required by the applicable procurement rules.
The Court then considered whether that decision to cancel the tendering process fell within the legal parameters established by the governing cases. While the plaintiff, as the second-ranked bidder, argued that the evaluation rules were sufficiently clear to justify the rejection of the top-ranked bidder for failing to provide the required security certificate, the Court disagreed, finding that the requirement was vague and that cancelling and re-tendering was justified given the serious flaw in the evaluation rules:
Bearing in mind the features and factors highlighted above, which must be considered cumulatively, the relevant tests and principles fall to be applied to both the contract award criteria and the impugned decision. In my opinion, the contract award criteria bearing on the issue of the security licence were not formulated and expressed in such a manner as to allow all reasonably well informed and normally diligent tenderers to interpret them uniformly. This conclusion flows from an assessment of those aspects of the contract award documents highlighted particularly above. In particular, the instructions to tenderers, while stating that certain requirements were “mandatory”, on the one hand, explicitly provided that all mandatory requirements, in common with other factors, would be subjected to a variable scoring exercise and a weighting exercise. Whether viewed in isolation or in tandem with some or all of the other considerations highlighted in paragraph [51] above, I consider that this could have conveyed to some tenderers the notion of differing values and variable scores. Simultaneously, it could, plausibly, have failed to convey to all tenderers that “mandatory” requirements were of an absolute, inflexible character. Rather, the language used, in my view, was capable of leading some tenderers to believe that full compliance with all so-called “mandatory” requirements was not a pre-requisite to further evaluation of their tenders, but would be the subject of an exercise involving the application of variable scores and relative weights. Equally, the terms in which the instructions to tenderers were framed, in particular paragraph 3.2.2, could have conveyed to other tenderers that compliance with all “mandatory” requirements, including the provision of a current valid statutory security licence (or an explanation for its absence) was a precondition of an absolute nature to which no exceptions would be made. I further consider that the instructions could have conveyed to a reasonably well informed and normally diligent tenderer that the requirement of possession of a security services licence would be satisfied by obtaining this at a later date.
I consider that the hypothetical reasonably well informed and normally diligent tenderer could, understandably and plausibly, have construed and understood the instructions to tenderers in the various ways outlined above. There was sufficient uncertainty and ambiguity in the key passages in the instructions to give rise to this real possibility. There was scope for differing interpretations and viewpoints, none of which could be condemned as unreasonable, unarguable or illegitimate. I take into account also the absence of any statement in the instructions to the effect that a failure to provide a valid, current security licence with a tender would automatically disqualify the tenderer or, alternatively formulated, would render the tenderer’s bid ineligible for further evaluation. Thus, I reject the central submission advanced on behalf of the Plaintiff, summarised in paragraph [44] above.
The Court also concluded that if the security certification requirement had been clearly defined, this could have impacted the preparation of tenders and that the decision to cancel the tendering process met the standard of proportionately given the seriousness of the evaluation flaw. Furthermore, the Court found no evidence that the cancellation decision was motivated by ulterior motives that breached the fair treatment and non-discrimination rules:
I further conclude that if the requirement of possession of a valid, current security services licence had been expressed unambiguously as an absolute standard, a precondition to further evaluation of tenders, without which a tenderer would be disqualified or declared ineligible, this could have affected the terms in which tenders were formulated. This would have conveyed unequivocally to all tenderers the nature and substance of this requirement and the Draconian consequences of non-compliance. I consider that there was a significant shortcoming in the tendering instructions, in this respect.
Having made the aforementioned conclusions, it is a relatively short step to further conclude that the impugned decision was harmonious with the principle of proportionality. Properly analysed, the view formed by the Defendant, expressed in its internal documents and in the letter of decision, dated 8th December 2006, was that the instructions to tenderers and associated documents did not comply with the principle of transparency and the associated principle of equal treatment, as explained in the European jurisprudence. As appears from the above, I concur with this conclusion. To have proceeded further, awarding the contract, would have been in breach of European law. Furthermore, the principles of transparency and equal treatment are key elements of the Directive and the 2006 Regulations. The legitimacy of the aim to be achieved in deciding to abort the existing competition and initiate a fresh one cannot be gainsaid. A fresh competition, curing the shortcomings which blighted its predecessor, will ensure that the EU law principle of transparency and the associated principle of equal treatment will be fully observed. The proportionality of the impugned decision is reinforced by the evidence of the care with which it was taken and the consideration that the Plaintiff’s final score was significantly lower than the score allocated to Maybin/Resource. It follows that the decision to discontinue and recommence afresh cannot be condemned as disproportionate.
Finally, at the trial, the Plaintiff did not seek to make the case that the decision to abort the competition had been motivated by a desire to confer some unfair benefit or advantage on Maybin/Resource. I would observe that, having regard to the extensive materials considered by the court, there is absolutely no evidence, direct or inferential, of an improper motive of this kind.
As this case study illustrates, project teams should carefully manage their mandatory requirements and ensure that they draft their evaluation criteria in a manner that clearly distinguishes between the initial pass/fail threshold eligibility requirements, subsequent rated factors that are scored after a bidder satisfies the threshold requirements, and post-award contract standards that inform how a contract will be performed by the winning bidder. Intermingling these different requirements and failing to maintain clear lines between these different categories can undermine the transparency and defensibility of a tendering process.
