The Judge over your shoulder
Courts will not put themselves in public sector buyers’ shoes and re-score tender evaluations. However, evaluators need to be very careful about what they say and write (particularly as nearly everything, including internal e-mails, is disclosable under Freedom of Information).
Unwise remarks can be embarrassing – a good test to use, is to think about what it will sound like read out in a dusty courtroom by a barrister trying to put the worst spin on it. In some cases, careless remarks may encourage an unsuccessful bidder to challenge and in the worst cases, can lead to the buyer losing a court case.
In a recent judgment (9th October) the High Court considered a claim brought by Willmott Dixon against Hammersmith and Fulham in respect of a tender for a £177m contract for housing maintenance. WD were the previous contractor but lost the tender to Mitie by a very narrow margin. WD challenged HF’s decision on 13 separate grounds, including alleged use of improper or different award criteria from those set out in the tender documents, and “manifest error”. In essence, their claim was that HF had got the tender evaluation wrong and WD should have won the contract.
What made things worse for HF (and probably encouraged WD to sue) were a number of comments by HF’s evaluators, including that HF were looking for “a sea-change” in delivery, “Disappointingly, it’s the same old, same old” (of WD’s tender), and a number of comments about WD staff and sub-contractors.
The judge (Acton Davis QC) restated the rule that the Court’s role is not to second-guess the procuring authority, but to look at –
a. whether any of the key principles of transparency, equality and objectivity have been infringed; and
b. whether there has been any manifest error in the evaluation process.
In determining what amounts to “manifest error”, the judge accepted that it is not for a court to consider whether a score should have been a 4 rather than a 3, nor to decide which tender was better. Instead, the test is, was this a mark which no reasonable authority could have awarded; i.e. it had no rational foundation?
The judge then reviewed the detailed facts of each of the claims raised and. although there were areas where the evaluators’ reasons for awarding a score were not clear, and the comments clearly did not help, he decided that there was not enough evidence that HF’s decision was a manifest error, nor that the evaluators’ comments showed a subconscious bias or use of improper award criteria.
So public sector buyers can feel a bit more comfortable, as judges will not look over their shoulder and pick over whether a procurement decision was right or wrong. Only if the decision was so wrong that no reasonable authority could have made it, will a tender decision amount to manifest error.
However, tender evaluators need to be incredibly careful what they write and say. While the judge found in this case that there was not enough evidence of bias or use of improper criteria, the council was undoubtedly left red-faced. In cases where the evidence is stronger, unwise comments could lead to judgment against the buyer and much more serious consequences.