By Joanna Frost
10th Oct 2018
A recent ruling in a claim by a bidder in a procurement process being run by Lancashire County Council acts as a useful reminder of the importance of adhering to your stated procurement process and of adequate record keeping.
All contracting authorities (including schools, academies and colleges) are obliged to apply the principles of the EU Treaty when conducing procurement processes, including the principle of transparency, non-discrimination and equal treatment. The judge reminded us that the contracting authority (in this case Lancashire County Council) was obliged to give details of how the process would be run, how the evaluation would be conducted and how marks would be awarded, and to do so in such a way that was objectively capable of being understood by a reasonably well informed and normally diligent bidder. Bidders should be in a position of awareness as to how tenders will be marked, including the relative importance of various elements of the bid. Importantly you are then required to stick to the stated process in order to ensure transparency.
The Council’s evaluation moderation process was put under scrutiny, with the judge finding that the process was not compliant as Council moderators looked first at the scores achieved by the top scoring bidder and then went on to try and moderate these by looking comparatively at the Claimant’s tender and scores. This was not the permitted approach as it amounted to using the top scoring bid itself as an evaluation/moderation schema rather than the actual award criteria set out in the procurement documentation. The notes that were taken during the Council moderation meeting were also discussed with the judge reminding us that whilst there is no requirement to disclose a full account of each individual moderating decision, the reasons given and the account of the moderation process must be sufficient to allow a claimant to understand what has been done in the evaluation/moderation and why. Consequently, the judge upheld the Claimant’s complaint and ordered the Council to abandon its decision to award the contract.
Find out more about the particulars of this claim by visiting British and Irish Legal Information Institute
Should you have any questions please contact Regional Procurement Advisor Jo Frost via email [email protected] or on 07990 763928.