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 November 2011 decision in Resource (NI) v. Northern Ireland Courts & Tribunals Service, the High Court of Justice in Northern Ireland, Queen’s Bench Division, struck down a contract award after finding that the winning bidder submitted an out-of-scope counter-offer in its proposal. The dispute dealt with a tendering process for the provision of court security services for 23 courts in Northern Ireland. A losing bidder challenged the process, arguing that the winning bid should have been disqualified as non-compliant since that bid contained an out-of-scope counter-offer regarding the daily cash collection and bank deposit services required for each courthouse. As the Court summarized, the requirements established in the tendering process contemplated daily cash collections and deposits into bank night safes so that deposits could be credited to specific courthouses the next day:
In response to further clarification questions, a description of the standard cash collection and banking arrangements was provided. This placed some emphasis on the daily banking of cash collected from courts. The third event of note concerned the final clarification issued to tenderers, which stated that daily NICTS cash collections from the relevant locations are conveyed to the local Northern Bank branch, with each collection “normally lodged in the night safe and therefore credited the following banking day”. The night safe banking mechanism was reiterated in a subsequent reply to a question about “specified time window for cash collections”.
The Cash Collection Issue
The subject matter of Section 2.9 of the SOR is “Cash Collection”. The essential requirement which this enshrines is expressed in paragraph 2.9.1 as follows:
The Contractor must ensure all lodgements are collected and safely delivered from all courthouses to local branches of the client’s bank on a daily basis (Monday to Friday) unless otherwise agreed with the client…Details of cash lodgement figures per venue are included in the supporting documentation.
Paragraph 2.9.3 continues:
The Contractor must deliver a proposal on how it will ensure the daily collection and deposit of bank lodgements as detailed above.
In “Clarification No. 4”, responding to the question “Is there a specified time window for cash collections across the courts estate?”, NICTS repeated the substance of the standard cash collection and banking arrangements which had already been conveyed in reply to one of the earlier clarification questions. In formulating its proposals in response to this element of the SOR, it was incumbent on each bidder to address separately and specifically (a) the specified “out of Belfast” courthouses and (b) the four identified central Belfast locations.
However, as the Court summarized, while the winning bidder (referred to as “G4S” in the judgment) agreed in its bid that it could provide daily deposits to separate banks, it also proposed a consolidated deposit at a central bank, which could then be credited against the individual bank accounts of the different courthouses:
In response to Section 2.9 of the SOR, the G4S tender stated:
We will ensure that all lodgements are collected and safely delivered … to the NICTS bank on a daily basis (Monday to Friday) unless otherwise agreed with NICTS.
The two separate proposals required were framed in virtually identical terms. The details of the “Solution” focussed on inter alia, the availability of secure vehicles and a proposed audit trail, coupled with a claim that G4S is “the largest cash solutions organisation in Northern Ireland and across the UK”. Appropriate insurance was also proposed. At this point, under the rubric “Enhancing the Security of the Service”, the G4S proposal continues:
We would be pleased to deliver NICTS lodgements to local bank branches as specified. However, we believe that a far more secure solution is collection by armoured G4S cash in transit vehicles and delivery of all monies directly to the Northern Bank Cash Servicing Centre, housed in G4S facilities in Mallusk. Lodgements will be automatically credited against individual bank accounts (branch and/or service area), using the G4S lodgement tracking system. This approach avoids cash being handled by court officials and then deposited in the designated bank’s night safe and is therefore a far more secure and robust solution…As a consequence, cash will be transported from court to the serving centre at the end of one day and then directly counted and credited to the NICTS account on the morning following collection. This solution – cash direct from NICTS to cash servicing centre – provides the highest level of reassurance in relation to cash security.
The government ultimately awarded the contract to G4S, who proposed the alternative cash-handling approach. The complainant challenged this award, arguing that the alternative method was outside of the scope of the tendering contract. The government attempted to defend the award by arguing that the alternative proposal was extraneous and was ignored by evaluators, who awarded based on the initial commitment of the winning bidder to provide the cash-handling services as required in the tender call. The Court therefore had to determine whether the alternative proposal had influenced the government evaluators:
The outworkings of this omnibus pleading consist of complaints that NICTS committed a manifest error and infringed the principles of equality of treatment and transparency. Section 2.9 of the SOR was, in my view, framed in unambiguous terms. It conveyed unequivocally to all tenderers that all lodgements are to be collected from the relevant courthouses daily, from Monday to Friday, and delivered to “local branches of the client’s bank on a daily basis”. This requirement was repeated several times in Section 2.9. In its tender, the G4S approach entailed representing that it would comply fully with this requirement while, simultaneously, emphasizing strongly and devoting substantial space and attention to a quite different mechanism which, it claimed, was demonstrably superior in various respects. As recorded in paragraph [22] above, G4S repeated this proposed solution under a different guise, in the context of the “Service Management” sub criterion and the KPIs. In formulating, in its tender, these discrete proposals in this way, G4S was, plainly, seeking to secure an advantage over other bidders, by portraying its credentials and services in what it presumably considered to be the best possible light. Nothing else can rationally explain the inclusion of the passages in question. This strategy is, humanly and commercially, understandable. However, the fundamental question for the court is whether, as a result, the Evaluation Panel was lured into prohibited territory and committed a legally actionable error in consequence.
The Court gave little weight to the evidence provided by the government evaluators due to concerns over the flawed group scoring process. As the Court noted, during group evaluations, a procurement advisor (referred to as Ms. Williams) was tasked with preparing consolidated notes on behalf of the individual evaluators who then approved those notes:
While Ms Williams, CPD Procurement Manager, did not swear any affidavits, she provided a written witness statement for the trial. In this, she reiterates that the contract procurement competition was of the “restricted” variety. With reference to the Evaluation Panel meeting on 13th April 2011, she states:
It is my role to bring together individual panel members’ assessments into the agreed or consensus comments of the panel. Initially I draft the comments notes in longhand…The draft comments are then read to the panel members to confirm their acceptance of the same or to point out areas where they had concerns. In this case, as is usual, I was advised by the panel where I lacked detail in comments and where I needed to check the individual marking frames and add details from them…Following the evaluation meeting, I returned to my office and proceeded to type up all of the comments and to check all the scoring. I did copy some comments from Mark Radcliffe’s marking frame to add more detail to the marking frames, as Mark’s was the most detailed of the panel members. Part of my rationale for including as much detail as possible in the comments was to give the respective tenderers assurance that the panel had read each of their bids in detail, particularly as these were very substantial, weighty bids…Once I had typed up the marking frames I e-mailed these and an evaluation report to the Evaluation Panel for review on 15th April 2011. Some minor revisions were required … advised 19/04/11. The evaluation marking frames and report were formally signed off by the Evaluation Panel following presentation of the evaluation results to the Project Board on 20th April 2011.
Ms Williams’ witness statement also contains the following noteworthy passage:
And some comments were included in the marking frames as a statement of fact e.g. G4S’s suggested enhancement of the cash collection centre and Resources suggested enhancements including access to interpreting services. These statement [sic] of facts did not contribute to either tenderer’s score.
The relevant e-mails were attached to Ms Williams’ witness statement. These demonstrate that Ms Williams circulated to Panel members, inter alia, her composition of the final collective Panel comments. She attached this and other items “for careful review” and exhorted the Panel members in these terms: “Please ensure you are fully content with the comments and scores”.
This elicited one response only, from Mr. Radcliffe, who submitted “a couple of very minor comments for consideration”, apparently relating to the “comments on the scoring frames”. It is clear that the two comments in question are unrelated to any of the Resource grounds of challenge.
Notwithstanding the government’s attempt to document the group evaluation process, the head of the evaluation panel, Mr. Radcliffe, later disagreed with the accuracy of those consolidated group evaluation notes, claiming that the evaluation panel had given little regard to the winning bidder’s alternative cash-handling proposal and that his failure to take issue with the contradictory notes taken at the time by Ms. Williams when he reviewed and approved her notes was an error on his part:
In his evidence, Mr. Radcliffe, Evaluation Panel Chairman, did not dissent from the suggestion that the material entries in both his individual comments and the collective Panel comments called for an explanation. He claimed that the Panel viewed the offending portion of the G4S cash collection proposal as a possible future enhancement. He readily agreed with the description of the comments under scrutiny as an error. He attributed this to inattention on the part of (presumably all) Panel members. He accepted a failure on his part to review this document carefully. He was asked to explain when this error, or aberration, first came to his attention. His answer was that this occurred following the completion of the first phase of this litigation, when the court refused the Department’s initial application (paragraph [6], supra]. Mr. Radcliffe was asked particularly about paragraph 40 of his first affidavit, in which he averred:
The Panel also agreed comments to support the agreed score in each section of the evaluation model summarising the tender proposal, highlighting potential strengths and weaknesses. The final score reflected the most economically advantageous tender after assessing the full tender proposals against the published evaluation criteria and marking scheme.
He agreed, in terms, that he could not stand over the first of these averments, as the Panel had not engaged in any exercise of agreeing its collective comments at the crucial meeting. Nor could he proffer any adequate explanation for his failure to address this discrete issue in either of his affidavits or in his witness statements. He went so far as to suggest that the Panel marked this discrete aspect of the G4S tender on the basis of the first part of Section 2.9 only, disregarding the remainder. He conceded that a substantial proportion of the G4S cash collection bid should properly be viewed as irrelevant. He accepted that, in assessing the G4S cash collection proposal, the Panel did not consider any matters of detail relating to night safe bags, receipt books, receipted documents, confirmation of lodgements, the disarming of cash boxes or the deactivating of dyes. He further accepted that the omission of certain details from the G4S cash collection proposal was inexplicable. Mr. Radcliffe was asked whether the omission of these details supported the view that G4S was putting forward a “non-compliant” proposal (my shorthand). In response, he pointed to paragraphs 2 and 3 of his second affidavit. [I would observe that these do not really sound on the question posed]. When asked about the various elements of Mr. Jordan’s robbery risk critique in his witness statement, Mr. Radcliffe accepted that these issues had not been considered by the Panel. Notwithstanding the entries in his personal comments and the collective Panel comments, Mr. Radcliffe suggested that, at the Panel meeting, there was no deliberation about the G4S “enhancement” proposal. This contradicts flatly the evidence of Ms Williams (paragraph [27], infra). Mr. Radcliffe also agreed with the court that G4S was, plainly, strongly promoting its “enhancement” proposal.
The lack of consensus regarding the accuracy of the consolidated evaluation records, together with a lack of contemporaneous records of the individual evaluators that could have been relied on to reconcile any such inconsistencies, undermined the credibility of Mr. Radcliffe’s subsequent claims that the evaluators disregarded the alternative proposal of the winning bidder, particularly since that testimony contradicted the consolidated notes taken at the time by the procurement advisor, Ms. Williams. As the Court noted, this undermined confidence in either version of events:
Much of the sworn evidence of Mr. Radcliffe and Ms Williams bore on the discrete issue of the G4S cash collection proposal. I had the opportunity to assess these two witnesses during relatively lengthy periods and, further, to address various questions to them. I observe, first of all, that they provided accounts of the crucial Evaluation Panel meeting which were notably different. This inspired little judicial confidence in either version. I interpose here the observation that, under the current statutory and jurisprudential regime, meetings of contract procurement evaluation panels are something considerably greater than merely formal events. They are solemn exercises of critical importance to economic operators and the public and must be designed, constructed and transacted in such a manner to ensure that full effect is given to the overarching procurement rules and principles. Where, in any given case, a disappointed bidder’s legal challenge focuses on the activities and deliberations of an evaluation panel, the evidence bearing thereon will, inevitably, be carefully and objectively scrutinised by the court. Any failure by the court to scrutinise with particular care the contents of relevant individual and collective marking frames would be in dereliction of the judicial duty.
In her evidence, Ms Williams provided an elaborate account of deliberations relating specifically to the G4S cash collection proposal. Her sworn account contained a series of details and embellishments strikingly absent from that of Mr. Radcliffe. There was no dispute that the offending passages in Mr. Radcliffe’s individual comments and the Panel’s collective comments had the character of a substantial aberration. The court’s description of this aberration as “glaring” was uncontested. Neither witness provided a satisfactory explanation of how, when or in what circumstances the offending passages in the contemporaneous records of the Panel ultimately emerged. Insofar as inattention or oversight might be the explanation, both witnesses were unable to account for the manifest lack of care and attention reflected in key passages in the Panel’s final collective comments, particularly in circumstances where the initiating e-mail had exhorted Panel members to undertake a “careful review” and to ensure that they were “fully content with the comments and scores”. Mr. Radcliffe did not address this aberration in any of his affidavits or in his witness statement, nor did he deal with it proactively in his evidence. Rather, the material revelations did not emerge until the stage of cross-examination. These material failings must be viewed in the context of his evidence that he became aware of the error following completion of the first phase of this litigation. Bearing in mind his leading role during the first phase and taking into account also the very recent nature of the events under scrutiny, his failure to offer any explanation for not having discovered this error sooner is surprising. The proposition that this discrete issue should have been proactively and comprehensively addressed in these witnesses’ affidavits and written statements seems to me incontrovertible. I consider that this combination of factors, per se, gives rise to an inference adverse to the case advanced by NICTS at trial.
In fact, the Court found that neither of the government’s evaluation team witnesses were persuasive given the lack of care they put into the preparation of the contemporaneous evaluation records:
Admittedly, Ms Williams did address this issue in her witness statement. However, she did so in far from satisfactory terms. In particular, the treatment which this discrete issue receives in her witness statement is manifestly incomplete. It omits a series of highly relevant facts, events and factors relating to the circumstances in which the Panel’s final collective comments were generated. I consider that every witness statement, in common with every affidavit, should, in contemporary litigation, be full and frank. This proposition I consider unimpeachable and the citation of supporting authority is unnecessary. It is quite unacceptable that highly material evidence should be left to emerge only when the author of a witness statement or affidavit is cross-examined or questioned by the court.
In their sworn evidence, both Mr. Radcliffe and Ms Williams advanced a series of explanations and rationalisations. I found the explanations and rationalisations which both witnesses purported to provide under oath to account for the aberrant entry in the contemporaneous records unpersuasive. In demeanour and engagement with the court, both witnesses were hesitant, uncertain and unimpressive. With regard to the Evaluation Panel’s handling of the G4S cash collection proposal, I find that the evidence of these witnesses was demonstrably flawed, frail and infected clearly (though not necessarily intentionally) by a visible and persistent tendency towards ex post facto rationalisation. Both witnesses failed, repeatedly, to acknowledge that they could not provide concrete and conclusive answers to various questions put to them by counsel and the court. Instead, they preferred to offer responses which were manifestly vague and speculative. They further failed to acknowledge their inability to deal with certain questions. Moreover, in answering particular questions, they failed to articulate the limitations of their respective recollections or the qualifications which should properly have attached to their answers. Each displayed a tendency to provide answers to questions which they felt were expected or desired by the court. Both witnesses consistently failed to distinguish between the actual deliberations and conclusions of the Evaluation Panel (on the one hand) and their respective individual current views, assertions and interpretations (on the other). They continually blurred the critical distinction between these two matters.
The Court therefore rejected the government’s argument that the evaluators had disregarded the out-of-scope elements of the winning bidder’s alternative proposal and were not influenced by that proposal:
The main claim advanced by Mr. Radcliffe and Ms Williams in their evidence to the court was that the Evaluation Panel identified the relevant portion of the G4S cash collection proposal as an impermissible enhancement and disregarded it accordingly. For the reasons elaborated above, I find this evidence implausible and unpersuasive. The witnesses’ attempts to explain and rationalise the material passages in the Evaluation Panel’s final comments were singularly unimpressive. I am satisfied that substantially greater weight must be accorded by the court to the contemporaneous records than the evidence of the NICTS witnesses. These records, in my view, confound the corresponding sworn evidence of the two NICTS witnesses. The records fall to be construed by the court fairly, rationally and objectively. Prior to finalisation of these records, there was ample opportunity to correct the erroneous /aberrant entry. None of the six persons concerned did so. The court is inevitably unimpressed by a process which involved a key player, Ms Williams, (by her own evidence) “cutting and pasting” significant portions of Mr. Radcliffe’s individual comments into the final version of the Panel’s collective comments following the critical meeting. There was a clear failure to compile a comprehensive and final contemporaneous record of the Panel’s deliberations and to agree same there and then. Furthermore, there were manifest and serious breaches of the CPD rules. Specifically:
(a) It was incumbent in the Panel to disregard entirely “anything outside the evaluation criteria or information requested”. I find that the Panel failed to do so.
(b) Where information provided by the tenderer was considered irrelevant, the Panel was required to state the reason in the evaluation marking frame. The Panel, indisputably, failed to do so.
(c) There was a failure by the CPD representative to record, at the Evaluation Panel meeting, the Panel’s final collective comments and to ensure, at that stage, that all Panel members subscribed to them. The exercise which post-dated the Panel meeting was incompetent and unimpressive and, in my view, was in clear breach of the substance, spirit and ethos of the CPD guidance.
In fact, the Court determined that these irregularities constituted manifest errors that impacted the evaluation and award decision. As the Court concluded, the absence of any express statements in the evaluation records proving that the evaluators had disregarded the winning bidder’s out-of-scope cash-handling proposal supported the conclusion that the evaluators had in fact been improperly influenced by that out-of-scope aspect of the proposal when making their award decision:
I turn now to consider how the material entries in the marking frames should be construed by the court. Since the collective Panel comments did not contain any rejection (reasoned or otherwise) of the G4S cash collection centre proposal and since G4S was accorded full marks for its cash collection proposal, all of the accompanying comments should, in principle, relate to perceived strengths and merits – and nothing else. The allocation of full marks can only be construed as an assessment by the Panel that this aspect of the G4S tender was flawless. The comments in the individual and corporate marking frames must be construed by the court in this context. In my opinion, it is trite that the meaning of any document is a question of law for the court. I acknowledge that in performing this exercise, the court must guard against construing the words in question as if they were a statute or some legal instrument. Furthermore, these comments are in the nature of summaries and are not designed to provide a verbatim record. On the other hand, their importance is indisputable, when viewed from the perspectives of the CPD guidance, the duty to provide reasons to unsuccessful bidders and the overarching procurement rules and principles, particularly those of transparency and equality of treatment. It follows that the exercise of compiling and recording comments is one of some solemnity: see my observations in paragraph [35] above. Approached in this way, I consider that both the individual and collective comments in the marking frames under scrutiny convey unmistakably two things in particular. First, the Evaluation Panel construed the G4S proposal as a proposal to deliver all cash collections to their G4S cash servicing centre, either with immediate effect or at some time subsequently. Second, the Evaluation Panel was plainly impressed by this aspect of the overall proposal, viewing it as a positive virtue. I consider that this is how the marking frames must be construed. This construction is then juxtaposed with the evidence of Mr. Radcliffe and Ms Williams. In my view, sworn evidence of a cogent and compelling nature would be required to displace the above analysis. I have already held that the evidence of the two NICTS witnesses was not of this calibre.
The principles bearing on the matter of manifest error in the realm of public procurement cases are well settled and, unsurprisingly, were not in dispute between the parties. I accept that where a manifest error is demonstrated, the court must be satisfied that this was operative, or material. This requires the court to scrutinise the scores awarded and the eventual outcome of the procurement competition. Thus the court must turn its attention to the “no error” scenario. This becomes a difficult exercise, given the limited role of this court, which is one of review and, further, taking into account the court’s findings that the Evaluation Panel was misguided in its assessment of the G4S cash collection proposal and was impermissibly influenced and impressed by it. These findings lead inexorably to a further finding that the full score of 5 marks accorded to G4S was infected accordingly. By analogy, in conventional public law terms, it was the product of taking into account a wholly immaterial consideration. Bearing in mind the role of the court, coupled with Mr Radcliffe’s concessions in cross examination – see paragraph [26] above – I am far from persuaded that, absent this material and substantial error, the Evaluation Panel would have awarded the same mark to G4S. The assessment which they should have performed was not carried out and is one which the court is ill equipped to undertake. I am instinctively reluctant to speculate that the error made no difference to the Evaluation Panel’s score. I decline to embark on an exercise of second guessing what the Evaluation Panel would have done in the “no error” scenario. My construction of the Evaluation Panel’s final collective comments is that the impermissible factor was plainly influential. I cannot exclude the real possibility that, viewed through a different – and correct – lens, the Panel could have awarded a lower mark to G4S. Full marks of 5 out of 5 were allocated. It is common case that if the mark assigned to G4S had been less than 4 out of 5, Resource would have won the competition. The margins could not conceivably have been tighter. Finally, I have found that the error was one of obvious gravity. Taking all of these factors into account, I conclude, borrowing the words of Silber J, that this error was, as a minimum, “of some consequence to the result”: see Letting International –v- Newham LBC [2008] LGR 908, paragraph [128].
Giving effect to the above findings and conclusions, I am in no doubt that in its assessment of the G4S cash collection proposal, the Evaluation Panel fell into serious error. This error consisted of giving credit to G4S for a specific aspect of its proposal which was irrelevant and alien to the contract being procured. This discrete aspect of the G4S proposal fell squarely outside the SOR. It qualified for summary and unequivocal dismissal by the Panel accordingly. However, I find that, far from dismissing it as irrelevant, the Panel was influenced by it to the extent that it was viewed as a positive merit of the G4S bid. Moreover, this was not a matter belonging to the realm of expert evaluative assessment on the part of Panel members possessed of expertise and qualifications which the court cannot match. Rather, the applicable touchstone here is that of manifest error. In summary, I conclude that the Evaluation Panel committed an error which has been clearly demonstrated, is plainly material and cannot be characterised as other than grave. I consider this to be a clear case of manifest error.
The Court therefore concluded that by taking irrelevant considerations into account in their evaluation, the government evaluators breached the principle of transparency and equal treatment of bidders:
In my view, the analysis and findings rehearsed above must also give rise to the conclusion that an infringement of the principle of equality of treatment has occurred. In short, I find that G4S were given credit for one element of their cash collection proposal, impermissibly and erroneously. None of the other bidders was accorded this benefit. It follows that G4S have received preferential treatment, to the detriment of their competitors. It is impossible for the court to dismiss this detriment as minimal or inconsequential. I conclude that the principle of transparency was also infringed, as a result of G4S receiving credit for something which did not form part of the published contractual rules and award criteria. Properly analysed, G4S was the beneficiary of a concealed, unpublished contract award criterion. This is a classic illustration of infringement of the principle of transparency.
It is possible to reduce the court’s assessment and determination of the first of the Resource grounds of challenge to the following, hopefully intelligible, bare summary:
(a) The essence of this discrete challenge is that, in its understanding and assessment of the G4S cash collection proposal, the Evaluation Panel fell into serious error.
(b) The records of the Panel (collectively) and its chairman cry out for an explanation.
(c) An explanation has been advanced by NICTS in its evidence.
(d) The court finds this explanation frail, unreliable and unsustainable.
(e) The error found by the court is sufficiently demonstrated, grave and material to constitute a manifest error in procurement law terms.
Resource’s first ground of challenge is made out accordingly.
After finding that the flawed evaluation process resulted in a manifest error that compromised transparency and equal treatment standards, the Court determined that the government’s evaluation decision should be set aside. The Court then ordered the government to award the tendered contract to the complainant. As this case illustrates, the failure to keep clear contemporaneous evaluation records for all evaluators can undermine the defensibility of an evaluation and award decision. In this case, weak evaluation records undermined the government’s ability to refute allegations that the evaluators were influenced by out-of-scope considerations. Project teams that fail to properly manage their evaluations risk having their evaluations struck down by the courts through set aside orders and risk seeing their evaluations taken over by the courts through redirect awards to other bidders.
