Public procurement rules require public institutions to disclose the criteria that they will be relying on when evaluating competing bids. With reference to the common evaluation category of prior project experience, this article explains why public institutions need to disclose evaluation sub-weightings in their solicitation documents to better ensure the legal defensibility of their contract award decisions.
For the purposes of this discussion, assume that you are drafting a solicitation document for a high-value project where you state that prior project experience will be scored out of 40% of the total bid score, that bidders will be required to submit three prior projects to demonstrate their relevant experience, and that those three prior projects will be scored against the five following sub-criteria: (i) project value; (ii) similarity to the current project; (iii) timely completion of prior project; (iv) on budget completion of prior project; and (v) use of the same key personnel proposed in the current bid. This first level of disclosure is insufficient to meet the transparency standards required in a public sector tendering process since, without disclosing further sub-weightings, evaluators are left with too much latitude to manipulate the final bid rankings by applying hidden sub-weightings to the five sub-criteria when scoring the bids.
For example, if the evaluators are applying an implied equal weighting rule, that would mean that each of the three prior projects would be weighted at around 13.3% of the total for that 40% category. However, even if we accept that implied sub-weighting per project, it is not clear how the five sub-categories would be weighted against the 13.3% of points available for each prior project. This would require a second assumption that each sub-category is equally weighted at around 2.6% of the 13.3% points available per project. This awkward fragmentation of percentages raises doubt over whether the evaluators will mechanically apply an equal weighting rule in their scoring, or whether they will apply other hidden sub-weightings behind the scenes.
If the sub-weightings are not disclosed, a losing bidder can allege that the evaluators manipulated the process by arbitrarily applying non-transparent sub-weightings after reviewing the bids to support a predetermined outcome since manipulating the sub-weightings allows them to change the overall scores and rankings by changing the relative importance of each sub-criterion based on the information submitted in the bids. Even if this was never the intention of the evaluators, leaving the process open to this type of manipulation raises serious questions about the integrity of the resulting contract award decision.
Public institutions should disclose their sub-weightings to provide bidders with more transparency, to provide evaluators with guardrails for how to score the bids, and to protect against after-the-fact allegations by losing bidders that the evaluators relied on hidden criteria to improperly manipulate the award. In summary, failing to provide clarity on the allocation of sub-weightings constitutes a major design flaw in a solicitation document that makes the outcome difficult to defend, while providing next-level disclosures is a relatively straight forward due diligence exercise.
The practice of confirming and disclosing sub-weightings serves as a safety check since it requires project teams to turn their minds in advance to consider if an equal weighting rule is appropriate. For example, if the five sub-categories noted above are not equally important – if the first category focusing on project value is actually worth half of the points since low-value project experience is less relevant to assessing a bidder’s ability to perform on a high-value project – then the level of importance of that first sub-category should be disclosed rather than being applied as a hidden preference.
From a practical perspective, when this due diligence exercise is properly performed, it usually leads to project teams adopting clearer round numbers in their scoring. For example, when scoring three prior projects, it is far clearer to score the category out of 30% with each prior project counting for 10% of the total points. Those points can then be sub-divided equally across the five sub-categories at two-percent each if the sub-categories are equally important. However, if the first sub-category, past project value, is seen to be the most important sub-factor, then the ten points per project can be allocated as six percent for project value and one percent each for the remaining four sub-criteria.
Either way, the ground rules need to be clearly set out in advance in the solicitation document since performing proper due diligence on sub-weightings is a far better option than proceeding with vague evaluation rules that expose a project to unnecessary and avoidable legal risk.
