Keeping Them Honest!
We all have a great fear that, no matter what the rules say, a large and powerful Contracting Authority can play “fast and loose” with the procurement competition to meet their own agenda.
This has now been clearly and substantially curtailed.
In a recent High Court judgment, we have seen the Court underlining the importance of correct evaluation and scoring processes being used by the evaluators when they consider competing Public Sector bids under EU rules. In this case, the Authority was castigated for not adequately recording its scoring and assessment decisions, inconsistent scoring practices and manipulating the evaluation processes to avoid a particular bidder being disqualified!
The list of “errors” on the part of the Authority included:
* Informal (and unrecorded) conversations forming part of the evaluation process.
* The evaluator’s use of “cut and paste” techniques for the evaluation.
* The decision support system used to process the tender submissions being altered.
* Admissions from the evaluators that they had been inconsistent in their analysis of the competing tenders.
* Evaluator’s notes, not in the decision support system were expected to be destroyed.
The Judge noted that where there is an express obligation of transparency, as in the procurement process, the Authority’s approach to note and record keeping and then proposing not to keep all written evaluation material, was not justified.
Following correct procedures
For us, this means we can rely upon a Court requiring complete and fair disclosure of the evaluation processes in a procurement challenge. It will be up to the Authority to show it has:
* Run a process in line with the EU principles of transparency and equal treatment, and all bidders having been marked against the same objective criteria.
* Consistently followed clear and objective marking criteria.
* Enforced mandatory requirements.
* Properly recorded the evaluation process (including dialogue sessions) and retained the records.
* Not attempted to impede a legal challenge.
So if you are having problems with any Contracting Authority which you think has not evaluated your competition fairly, mention Energy Solutions EU Ltd v The Nuclear Decommissioning Agency in your next conversation and see if their attitudes suddenly change.
Of course, if you find yourself in this type of difficult situation, you may want to chat it through with Sixfold first. Please call Sixfold at any time on 01227 860375 for a no obligation discussion about how they might help with your next bid or challenge.