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 May 2000 decision in Orange Telecommunications Ltd. v. Director of Telecommunications Regulation, the Supreme Court of Ireland overturned a trial decision that struck down a contract awarded for bias since it found no compelling evidence to support those bias allegations. The dispute dealt with a tendering process for the provision of mobile phone licences in Ireland. A losing bidder based in the United Kingdom challenged the contract award on allegations that evaluators were biased against its foreign bid. The trial court agreed and struck down the award. The government and original winning bidder appealed that decision to the Supreme Court of Ireland. The Supreme Court reversed the trial decision after finding that there was no compelling evidence of actual bias. More specifically, there was no evidence that any of the evaluators had a financial interest in the outcome or any other evidence of actual bias in the evaluation process:
I have already made it clear that, in my view, the approach adopted on behalf of Orange in the High Court and again in this court on the question of bias was entirely misconceived. Since there was not a scintilla of evidence that the Director, or any member of her staff or any of the consultants retained by her had any interest whatever of a pecuniary or other nature in the outcome of the tender procedure, there was no basis in law or on the evidence for the finding of objective bias made by the trial judge. The submission on behalf of Orange that aspects of the procedures adopted by the evaluators – as distinct from their specific findings and markings – would support a finding of either objective or actual bias is, for the reasons I have already given, equally unsustainable.
The Supreme Court therefore overturned the trial decision and restored the contract award decision.
As this case illustrates, to successfully challenge a bidding process based on a bias claim, a losing bidder must provide proof that the award decision was or could reasonably have been compromised by bias. Mere allegations and conjecture are insufficient to support a winning claim. Purchasing institutions should avoid rushing to reverse contract awards decisions in the face of mere allegations since contract awards should not be arbitrarily reversed based on unsubstantiated allegations.
