By Pat Condon
1st Jun 2018
CPC recently let a tender that when we went to standstill created a very interesting conundrum for us when challenged by a supplier as to the transparency of the information that we had declared to them within the standstill letter. We received the following request;
‘We appreciate the feedback you have provided but would welcome further detail in order to understand the characteristics and relative advantages of the successful tenderers in comparison with our submission. Please could you therefore provide us with the following information: A full breakdown of the pricing scores (including both elements of the pricing mechanism for ourselves and each of the six successful tenders who have been awarded onto the framework, in addition to the score awarded to each successful tender for each of those elements. Please note that we are entitled to this information in accordance with the General Court's decision in Veloss (T-667/11).’
The case referred to is not a well-known case at all. In fact, when we approached solicitors to discuss, it was not on the standard EU procurement case law files within their operation. The decision taken by the General Court in the Veloss case made clear that even in cases where the unsuccessful bidder knows the precise formula for calculating pricing scores and can therefore reverse-engineer the total price of the winner, the authority must also disclose the actual total price. The reason is that it enables the unsuccessful bidder to check that the authority has not made any mathematical errors when applying the pricing formula.
At face value, it may seem that the request was valid, however, we were content that in providing feedback within the standstill letter, we had given the bidder a full breakdown of the scores pertaining to pricing achieved for both elements of the pricing evaluation as well as a comparison on their score relative to the other bidders who were successful whilst ensuring that all parties remained anonymous. Following a review of the Veloss case by our appointed solicitors, we issued the following;
‘We consider that the Standstill Letter was valid and comprehensive and that you have had the information you are entitled to receive, and which CPC is obliged to provide.
We note that you have referred in your request to the General Court's decision in Veloss (T-667/11). We wish to make clear, for the avoidance of doubt, that we do not consider that this case entitles you to any additional information over and above that already provided to you in the Standstill Letter. That case involved a finding that the unsuccessful bidder in that case had not been provided with sufficient reasons to enable it to assess whether it had a claim against the awarding Authority; it does not support a general proposition that an unsuccessful bidder is entitled to pricing information relating to other, successful bidders. We would also observe that Veloss involved an analysis by the General Court of the effect of Council Regulation 1605/2002, which governs the award of public contracts that are financed in whole or in part from the EU budget. Council Regulation 1605/2002 is not relevant to CPC's ITT, which was conducted under the EU Procurement Directives, Open Procedure. Furthermore, CPC's ITT was subject to the laws of England and Wales and the jurisdiction of the English and Welsh Courts, and it is not at all clear that those courts would apply Veloss when tasked with interpreting the EU Procurement Directive.’
This does mean though that where a member undertakes a procurement where the award of contract is financed in whole or in part from the EU budget, then aggrieved suppliers may seek to rely upon Veloss when questioning contracting authorities at the standstill period. It is worth noting though that ultimately, in this scenario, the interpretation of Veloss is that the total cost of the winning bidder should be routinely disclosed. Detailed breakdowns however, should not. The case can be viewed here Veloss v European Parliament.
If you have any questions please contact Contracting Manager Pat Condon via email firstname.lastname@example.org or on 0161 974 0936.