Please consult legal advice or read the cases in full when making important decisions. Below is a selection of case law serving as a quick reminder for procuring under the Public Contract Regulations (2015) (2006). This does not serves as an endless list so do your own homework in addition to checking out the selection I put together!
| Exclusion based on lack of information | Deane Public Works Ltd v Northern Ireland Water, | Exluding a bidder based on out of date PQQ information was justified on the principles of equal treatment. Going back to make a clarification and allowing additional treatment means treatment woud be unequal |
| Selection & Award criteria | Eurpoean Dynamics- combined cases | Selection and award critieria
used in the different stages. The evaluation of CVs during the award stage
was different to the evaluation undertaken at the selection stage and held that there can be circumstances where it is permissible to evaluate CVs at the award stage. It stated that “in a case where both a framework contract relates to services of a highly technical nature and the precise subject matter of the services to be provided must be determined progressively as performance of that contract proceeds, the technical skills and professional experience of the members of the team proposed are liable to have an impact on the quality of the services rendered under the contract. In such a situation, the technical skills and professional experience may therefore determine the technical value of a bidder’s tender and, consequently, its economic value”. |
| Consortium right to bring legal challenge | 1. European Dynamics frequently bid as part of a consortium. The General Court has confirmed that a claim from a single member of a multi-party consortium is admissible as each member is an addressee of the contested decision. | |
| Specific document requirements | 2. If the tender documentation specifies a particular requirement for bids then the bid can only be lawfully considered if that requirement is met. European Dynamics have been on both sides of decisions on this. In one case their bid failed because they could not obtain a permit that was a specific requirement of the tender but they also successfully challenged where a winning bidder submitted a bid by post but could not prove that it had met the requirements of the tender to send the documentation before a particular date or by registered post. Where the winning bidder could not prove that it had posted its bid in accordance with the tender requirements its bid had to be discounted. | |
| Qualifying criteria | 3. Qualifying criteria must not be confused with selection criteria and used as part of the assessment of the bid. In December 2011 the General Court upheld European Dynamics? complaint against the European Commission that amongst other things it had evaluated the tender by reference to a summary of services and managed websites. This was deemed to amount to an evaluation of the tenderers’ experience rather than an evaluation of the tenders solely on the basis of the quality of the tender itself. The court added that a criterion based on the tenderers’ experience relates to technical and professional capacity to perform the contract and cannot therefore be aimed at identifying the contract offering the best value for money. | |
| Selection & Award criteria | 4. Provided qualifying criteria are not mixed up with selection criteria then contracting authorities have a broad discretion with regard to the factors to be taken into account for the purposes of taking a decision. European Dynamics have challenged this time and again and have rarely been successful. April 2012 the General Court confirmed that a contracting authority has the power to choose the selection criteria which it considers best suited to the purpose of the call for tenders provided that the chosen criteria are clear proportionate to the purpose of the call for tenders and non discriminatory. Similarly in March 2010 the General Court found that that contracting authorities were free to choose the criteria on which they proposed to base their award of the contract provided those criteria could be applied objectively and uniformly in order to compare tenders. | |
| Incumbent unfair advantage | 5. European Dynamics have challenged several times on the basis that incumbents have an unfair advantage. In September 2011 the General Court commented that to the extent that an incumbent contract may have an advantage over other tenderers this was in no way a consequence of any conduct on the part of the contracting authority. Short of excluding bids from incumbents it is almost inevitable that some form of advantage would be conferred on the incumbent because they have been performing the contract up to that point. That did not mean that it could be inferred from the results of a tendering procedure that there had been a breach of the principle of equal treatment. Some further evidence of favouring an incumbent would have to be provided. | |
| Clarification of bids | 6. A contracting authority may seek clarification of a bid and indeed should do so if there is a ‘particularly obvious’ material error in the bid. Where the tender is ambiguous there is no obligation to seek clarification. In any event an ambiguity can only be clarified where it is easy and simple to remove the ambiguity. Any further than that and there is a risk of straying into alteration of bids. | |
| Altering bid cost- BAFO with only 1 bidder | 7. An outright win for European Dynamics on this one as the General Court annulled the decision of the European Investment Bank where among other things the successful bidder had been allowed to alter its bid after evaluation. Following evaluation the winning bid was judged the costliest and so a further meeting with that bidder alone was held during which the successful bidder was allowed to make alterations to reduce the cost. Following that meeting the contract was entered into. Allowing one bidder to alter its bid in this way was a breach of the principles of equal treatment non discrimination and transparency. | |
| Feedback & Timing | 8. Another common complaint by European Dynamics is that it had not been given sufficient information about its own or the winning bid to enable it to challenge a decision. In July 2007 the General Court found that the European Commission had given insufficient information to allow European Dynamics to understand the characteristics and advantages of the successful tender and so to defend its rights. This was following a failure to give any comment on the successful tenderer’s bid when comparative scores were provided. As the successful tenderer had offered a higher price the assessment of the quality of the bid as regards the qualitative award criteria had been the deciding fact and that made the provision of the information all the more necessary. | |
| Challenge evaluators assessment | 9. It can be difficult to challenge a contracting authority’s assessment of a bid. European Dynamics have repeatedly tried to do this and rarely succeeded. Typical of the usual response of the General Court is that made in September 2011 when it held that contracting authorities have a broad discretion with regard to the factors to be taken into account for the purposes of taking a decision awarding a contract and that review by the court must be limited to checking that the rules governing the procedure and statement of reasons have been complied with that the facts found are correct and that there has been no manifest error of assessment or misuse of powers. | |
| Automatic suspension | 10. Finally although it is no longer necessary for an unsuccessful bidder to seek an injunction to stop a contracting authority from entering into a contract English courts still look at what are known as ‘American Cyanamid’ principles in deciding whether to lift an automatic suspension. In one of its forays into the English court system European Dynamics found that it can be difficult to obtain an injunction (and now to prevent the lifting of the automatic suspension) because the court will (a) usually consider that damages are an adequate remedy and (b) the balance of convenience lies in securing the service that has been tendered for. | |
| CV selection or award criteria | European Dynamics (2013) | Although CVs had been considered at both stages, different issues had been assessed. The examination at selection stage was limited to whether the tenderer had sufficient personnel who met the minimum technical requirements (i.e. the tenderer’s technical capability). In contrast, the examination at award stage related to the technical value of the proposed team. |
| Certificate past performance | Departmental bodies should provide certificates to past suppliers who have requested them as part of the implementation of this policy; copies must be sent to the Cabinet Office. A template certificate is provided at Annex 3. Where poor performance has meant a public body is not prepared to provide a certificate reasons must be given; | |
| Verify information for equal treatment | Contracting authorities must verify the information obtained being careful to treat all bidders equally and not discriminate and to act transparently. A panel should be appointed to adjudicate on whether the minimum standards are met in any particular case. | |
| Challenge and use of claim form | Corelogic Ltd v Bristol City Council | Corelogic issued a Claim Form alleging inadequate provision of post-tender (my emphasis) information. However several weeks after issuing Corelogic sought to amend the Claim Form to allege manifest errors in the assessment of the tender and the use of undisclosed award criteria. Both of these allegations related to matters which took place during the tender process. he High Court held that these allegations were new claims as they related to the conduct of the tender and not to the failures post tender which had been the original source of complaint. Rushing a claim may be to the deteriment of the claimant |
| Challenge breach | Case C-161/13 Idrodinamica Spurgo Velox srl v Acquedotto Pugliese SpA | Contracting authorities should therefore take care and unsuccessful bidders remain vigilant in the period between notification of the award decision and contract conclusion. Breaches of procurement law in this period are just as susceptible to challenge as those leading up to communication of the award decision and will trigger a new 30 day limitation period. |
| VEAT Notice | Italian Interior Ministry v Fastweb SpA | If the three conditions of the VEAT notice route were compliantly followed then the national court must allow the safe harbour to operate and could not choose to impose a declaration of ineffectiveness in any event; the safe harbour could not be treated as optional where all the conditions were met;it was for the national court to determine on the facts whether the conditions had all been met including the condition that the contracting authority ‘considered’ that it had been entitled to award the contract directly without a notice;the national courts must as part of their role as review body scrutinize the justifications to ensure that the contracting authority had acted diligently and that the justification used was valid particularly as the negotiated without notice route is a derogation from the procurement rules generally and as such is to be strictly and narrowly interpreted. It is for the national court to decide whether the justification used in the VEAT notice stands up and the contracting authority can therefore be said to have considered itself entitled to make a direct award. The court stopped short of ruling that the protection of a VEAT notice should always be available in the event of a genuine but mistaken belief that a direct award was permitted; instead it will be for the national court to assess how diligent the contracting authority was in formulating that genuine belief. |
| Public Contract Regulation Case Law | ||
| Suspension/ Injunction | American Cyanamid | Essentially it is a legal test which involves a two stage process of considering if there is a serious issue to be tried and, if so, the balance of convenience in granting an injunction or not. In considering the balance of convenience the question of whether damages might be an adequate remedy is one of the factors to be taken into account. |
| Correct obvious error | Dem-Master Demolition Limited v Renfrewshire Council | The court has recently considered the correct approach when dealing with the extent to which a contracting authority should allow a bidder to correct an obvious error. In this case a bidder for demolition work had its bid rejected because in relation to Lots 1 and 2 it had omitted mandatory financial information and for Lot 3 had submitted a blank template. The contracting authority disqualified the bid but the bidder argued that as the omissions were obvious and easily corrected it should have been allowed to correct the mistakes so that the bid could be fully considered. It argued that the Authority was bound to seek clarification. It said that there was no duty on the Authority to give a bidder the chance to correct its bid. The reservation of a right in the bid documents to clarify allowed the Authority to resolve ambiguities but not to seek late submission of information which should have been supplied but was not. Had the Authority done so here it was likely that it would breach the principle of equal treatment. |
| Evaluation- scoring mechansism | Nuclear Decommissioning Authority (NDA) and Energy Solutions EU Ltd (now called ATK Energy) (ATK). | The Claimant was part of a
consortium which was unsuccessful in its tender for the contract for
decommissioning nuclear reactors tendered by the Defendant (the Contract).
The Contract was awarded by the Defendant to another consortium (the
Successful Bidder). The procurement process was lengthy and complicated. The
Claimant estimated it had spent £10,000,000 in preparing its bid and through
its involvement in the procurement process. Ultimately, however, the
difference in score between the Claimant and the Successful Bidder was only
1.06%. The claimant alleged a number
of issues in respect of the conduct of the procurement by the Defendant,
which it said had resulted in the Successful Bidder being awarded the Contract
unlawfully. These complaints related to: nchanges to important elements of
the scoring mechanism at a late stage in the procurement process changes to
the scores given to bidders without appropriate records being kept of the
reasons for the changes awarding scores which did not properly reflect the quality of the bid limiting the permanent records of the evaluation process to the absolute minimum of information in order to make it more difficult for challengers to bring claims failure to evaluate tenders consistently with what bidders had been told during dialogue inconsistency in the evaluation approaches and scores awarded to bidders seeking clarification differently in respect to some bidders providing a reason for its decision to award the contract to the Successful Bidder to the Claimant which was different to its reasons relied upon in court failing to exclude bidders from the process where they had failed a pass/fail question. riticisms of the procurement. The court made a wide range of criticisms of the procurement and the approach taken by the Defendant to the court proceedings. These criticisms should serve as a stark warning to contracting authorities as to the approach that the courts will take to any attempts to subvert the procurement rules or avoid scrutiny by disappointed bidders. One key criticism raised by the judge was that it appeared that the Defendant had attempted to get rid of information that might have been detrimental to its case had proceedings been issued. This included providing training materials to its evaluation team which made reference to ‘shredding notes’ (although the Defendant argued that this had not been the final form of the training materials) and providing instructions not to keep written notes except for on the electronic evaluation system where such notes could be deleted when they were no longer required. The court found that the Defendant was “acutely aware that an unsuccessful bidder might challenge the outcome of the competition” and that accordingly it had adopted a defensive approach to how it performed evaluation. This included restricting note taking by evaluators and “considering whether to shred notes”. The Court found this particularly concerning given the statutory obligation upon the Defendant to perform the evaluation transparently. In general, the court found that the approach taken by the Defendant to evaluating the tenders was directing at minimising the information that a disgruntled bidder would have access to and resulted in parts of the evaluation process “wholly lacking in transparency, in breach of the obligation of transparency upon [the Defendant]”. The judge felt that this was an entirely inappropriate way for a public body to act. Further, the Defendant was criticised for marking bidders inconsistently. One of the Defendant’s witnesses denied that there was any requirement for consistency when marking, directly contrary to the guidance evaluators had been given. This combined with the lack of ability for bidders to take notes or record their thinking in relation to evaluation lead to unequal treatment between the Claimant and the Successful Bidder, a further breach of the Defendant’s statutory obligations. As part of the process, the Defendant appointed a law firm to advise on its responsibilities and obligations in respect of the procurement. The advice the Defendant was given was not before the court because it was legally privileged. However, the court did note that the Defendant’s legal advisors had been intimately involved in the evaluation process, and that the fact that documents relating to their involvement were not disclosed meant that certain information about the approach to decisions taken by the Defendant was not available to the court, which did not assist the Defendant in defending the claim. In respect of the issue of pass/fail questions, the Defendant was criticised by the Claimant for failing to disqualify the Successful Bidder where it had failed to pass a pass/fail question. In his evidence one of the Defendant’s witnesses said that he had realised during the procurement process that the thresholds which meant that bidders could be disqualified could have very serious effects for the procurement, and suggested that these had been applied to criteria which in fact were perhaps not so serious as to warrant a potential disqualification. This realisation, it was suggested, had led to the evaluators increasing the score that would otherwise have been given in circumstances which otherwise justified a fail. This should come as a real warning to contracting authorities designing procurement processes. It is very important to consider whether failing to meet a particular threshold is sufficiently serious that a bidder should be excluded from the procurement process. Requirements of this nature should be applied transparently, which means that where a bidders’ tender deserves a below threshold score, that score should be given. However, this will potentially have serious effects particularly where there are a limited number of bidders. Accordingly, great care should be taken when including pass/fail questions in a procurement process – the case law on this point has confirmed that a contracting authority has no discretion to disregard a failure to meet a threshold requirement where such discretion is not included in the published procurement documents. In respect of the evidence given by witnesses who gave evidence on behalf of the Defendant, the judge noted that they “suffered from what, on occasion, bordered on an almost obstinate refusal to accept that any mistakes or errors had been made at all by the [Defendant], in any respect…” and accused them of “illogicality…claiming that [the Defendant’s] own stated reasons did not mean what they, on the face of the words, in fact stated”. He went on to say that “logic became an early casualty during the [Defendant’s] evidence… at times the degree to which the different [Defendant] witnesses sought to explain the contemporaneous reasons as meaning something quite different from their natural words became an extraordinary exercise in the tortured misuse of the English language.” It is rare that procurement cases come to court but these criticisms are a particular lesson on how not to deal with questioning from the court – trying to defend arguments which are indefensible will often not assist a case and can lead to an increase in the reputational damage suffered by a contracting authority. Ultimately, the court found a number of breaches by the Defendant of its obligations under the PCR 2006 and concluded that had the Defendant appropriately scored the bids, including giving appropriate scores to the pass/fail thresholds, the Successful Bidder would have been disqualified from the tender process, and the Claimant would have been awarded a significantly higher score which would have resulted in the contract being awarded to the Claimant. |
| Flawed VEAT, ineffectiveness | Faraday Development Ltd v West Berkshire Council and another | The Court also provided guidance on the requirements for a valid ‘Voluntary Transparency Notice’ (or VEAT Notice) in order to take advantage of the shorter timescales for disgruntled bidders to challenge procurement decisions. Following a finding that the VEAT notice was flawed, this is the first English case when a court has made an order for ineffectiveness. |
| Audit trail – scoring | Lancashire Care NHS Foundation Trust v Lancashire County Council | The Court quashed a contract award decision as the contracting authority was unable to provide sufficient reasons for the scores awarded to each bidder and could not therefore justify the contract award decision. This case emphasises the need to ensure that notes of tender evaluation are of high quality and can provide a paper trail to justify the scores awarded to the bidders. |
| Mandatory – Pass Fail must be stated explicitly | MLS (Overseas) Ltd v Secretary of State for Defence | The contracting authority failed to specify the effect of a ‘pass/fail’ criteria and as a result was considered to have unlawfully excluded a bidder from the procurement process. This case clarifies that where criteria include ‘pass/fail’ requirements the consequences of a ‘fail’ must be stated explicitly. Bidders will not be deemed to understand that a ‘fail’ results in tender exclusion. |
| Consortium selection criteria | Casertana Costruzioni Srl v Ministero delle Infrastrutture e dei Trasporti – Provveditorato Interregionale per le opere pubbliche della Campania e del Molise Azienda Regionale Campana per la Difesa del Suolo – A.R.CA.DI.S. | Reliance on consortium bidders to satisfy selection criteria |
| Consortium and equal treatment | A bidder was not permitted to replace a member of its consortium after the deadline for receipt of tenders, where the bidder was relying upon the member to satisfy a mandatory element of the selection criteria. The Court held the contracting authority was correct not to allow the consortium to amend its bid as this would amount to a substantial change to the tender and would breach the principles of equal treatment and non-discrimination (in favour of the consortium) | |
| Concession contracts | Ocean Outdoor UK v Hammersmith & Fulham | This case considers whether an arrangement to grant a lease for advertising infrastructure could amount to a services concession contract (under the Concession Contracts Regulations 2016 (CCR)). The Court determined that the arrangement was a disposal of an interest in land that did not amount to a services concession. There are relatively few cases dealing with the extent to which the CCR applies and the court provided helpful guidance on the application of the concession rules. |
| Conflict of Interest & Damages | Vakakis Kai Syner Gates v European Commission | It was alleged that a conflict of interest exist win the preparation of the tender terms of reference and td an unfair advantage exist. This raised alarms on conflicts of interest. the court granted to compensate the applicant for damage incurred due to the commisions unlawful conduct which had led to the applicant losing its opportunity of being awarded the contract Damages compensation for loss of opportunity in public procurement. The General Court of the European Union held that the applicant had succeeded in establishing the causal link between the Commission’s unlawful conduct and the applicant’s loss of opportunity and the costs and expenses incurred in participating in that call for tenders. The Court determined that the contracting authority failed to properly investigate and take appropriate steps in relation to an apparent conflict of interest where a consultant involved in the pre-procurement stage, was also a member of the consortium awarded the contract |
| Abnormally low tender | SRCL Ltd v The National Health Service Commissioning Board | Treatment of abnormally low tenders. This case provides guidance on the correct approach to assessing whether a bid should be considered to be an abnormally low tender. |
| Bidder conflict of interest | Šiaulių regiono atliekų tvarkymo centras, ‘Ecoservice projektai’ UAB, formerly ‘Specializuotas transportas’ UAB, and interveners | Bidder conflict of interest. This case provides clarification on the duties imposed on bidders where an apparent conflict of interest arises between two bidders participating in the same procurement. There is no general obligation on bidders to disclose links to another organisation that is independently participating in the same procurement process (eg ‘sister companies’), unless there is a requirement to do so in the tender documents. |
| Material change | Pressetext | Material amendments to contracts would constitute the award of a new contract, which should be re-tendered. (i) it would have changed who bid for or won the contract; (ii) it extends the scope considerably to encompass services not initially covered; or (iii) it changes the economic balance of the contract in favour of the contractor in a manner not provided for in the original contract. |
| Minor Changes | Succhi di Frutti | established that there is no material change if the contract provides relevant detailed rules for the change. This was applied in the Law Society case to conclude that a wide change control provision was not sufficient. |
| Substitution of sub contractor | Wall AG | substituting a key subcontractor could constitute a material amendment. |
| Material change 15% | Commission v Germany | material change – the new ambulance station increased by 15% the value of the contract, which the court held was ‘considerably above’ the procurement threshold. |
| Material change | Commission v Spain | motorway construction – the original notice covered construction of a new section of motorway, but the contract was materially amended to include works to other sections of motorway. |
| Equal treatment and “margin of discretion” in evaluation | Abbvie Ltd v NHS England | Background A challenge was brought by the American pharmaceutical company Abbvie Limited (“Abbvie”) against the NHS Commissioning Board’s (“NHS England”) Hepatitis C (“HCV”) drug procurement. The procurement, launched in spring 2018, is the largest NHS drug procurement ever undertaken, letting contracts worth nearly £1 billion over five years. The procurement was run pursuant to the competitive dialogue procedure to award up to three contracts and aimed to help England become the first country to eliminate HCV. AbbVie, one of three UK suppliers of HCV medication, claimed in the Technology and Construction Court that the procurement procedure failed to comply with the equal treatment principle established in European case law and codified in regulation 18 of the Public Contracts Regulations 2015 (“PCR”). The principle is breached where comparable situations are treated differently or where different situations are treated in the same way, unless such treatment is objectively justified. Abbvie contended that the evaluation methodology adopted by NHS England during the procurement exercise wase unlawful and should be set aside under PCR regulation 97. This contention centred around two aspects of the procurement, namely: i) the Dummy Price Mechanism” (“DPM”) which operated by assigning a price to a bidder in respect of a particular HCV genotype despite the bidder not actually producing a drug capable of treating such genotype. NHS England argued that the DPM was used In order to facilitate comparison between bidders, some of which could and others of which could not, provide treatments for the full spectrum of genotypes. Where a bidder did not produce a drug capable of treating one of the genotypes, they were given a “Dummy Price” (being the lowest price provided by the other bidders for that genotype) for evaluation purposes; and ii) the Unmetered Access Model (“UAM”) which relates to a fixed fee being paid under each contract let based upon the number of patients that the bidder committed to treat in their tender. This fixed fee was to be paid irrespective of the number of patients actually treated during the life of the contract. In practice, failure by one contractor to treat the number of patients that it had committed to treat in its tender, may lead to another contractor having to treat more patients than it had set out in its tender, without receiving any extra remuneration. Decision Margin of appreciation As part of the general consideration as to whether the principle of equal treatment had been breached, Choudry J considered arguments made by Abbvie that there was no margin of appreciation available to NHS England when determining whether the principle had been breached. Choudry J held that the position was more nuanced than this, in that only once a breach of the duty of equal treatment had been established, was the contracting authority then not afforded any margin of appreciation to “explain away its treatment”. Even then, only where differential treatment falls outside of a margin of appreciation and/or is “arbitrary or excessive” rather than objectively justifiable, would the contracting authority have no further margin of appreciation and the treatment be unlawful. Margin of discretion Alongside the margin of appreciation, the margin of discretion available to contracting authorities when choosing award criteria was also considered. Choudry J held that “there can be little doubt that contracting authorities are afforded a wide margin of discretion in designing and setting award criteria.” Referencing (inter alia) Lion Apparel Systems Ltd v Firebuy Ltd [2007] EWHC 2179 (Ch), the court confirmed that the fact that a scoring system favours a particular bidder, is not in and of itself, evidence of a breach of the equal treatment principle. As such, provided that the award model does not breach the equal treatment principle, the contracting authority has broad discretion as to the minutiae of the evaluation methodology. Dummy Price Mechanism Abbvie claimed the DPM was contrary to the equal treatment principle due to it conferring an unfair advantage on a bidder that was unable to actually provide drugs to treat the entire spectrum of differing genotypes. Choudry J held that due to Abbvie and MSD (the competing bidder whom Abbvie claimed benefited from the DPM) having differences in terms of their ability to treat certain genotypes, the DPM’s differential treatment of the bidders was in compliance with the equal treatment principle. As calculations submitted by both parties clearly demonstrated that Abbvie could have been successful under the DPM and beat MSD provided it bid the correct prices, no claim of unequal treatment was made out here. The court also confirmed that irrespective of whether there was in fact a breach of the equal treatment directive, such unequal treatment would have been objectively justified. Choudry J found that the DPM was a proportional means of NHS England achieving its legitimate aims of increasing competition, achieving greater value, reducing cost, maximising health benefits and enabling like-for-like comparison of different bids. Unmetered Access Model Abbvie argued that the UAM operated unfairly in that it could result in one contractor supplying treatments above the number they had committed to treat, without receiving additional payment. As all bidders were in a comparable situation and were subjected to the same rules, it was held that this was not an example of unequal treatment. The fact that Abbvie believed it held a competitive advantage and that it would therefore have to treat more patients, was not evidence that its position was not comparable to that of MSD. To hold otherwise, Choudry J explained, would mean that “where one bidder had a competitive advantage over another, the tender rules would have to account for that difference so as not to fall foul of the rules.” Further, Choudry J considered that Abbvie’s claim that MSD would commit to treat an unrealistic number of patients was held to be unfounded, as this was based on Abbvie’s misunderstanding of the tender requirements. In any case, the procurement had various in-built mechanisms to dissuade bidders from putting in unrealistic bids. In the alternative, the court held that any unequal treatment arising as a result of the UAM amounted to a proportionate means of achieving the legitimate aim of encouraging greater investment in elimination solutions. This was an important and legitimate aim of the procurement, as part of NHS England’s drive to eradicate HCV, and more than balanced the modest potential discriminatory effect on Abbvie. Implications This case provides a number of welcome outcomes for contracting authorities and utilities. It confirms that contracting authorities/utilities benefit from a broad discretion when designing and setting award criteria. Notably, the fact the model might favour a particular bidder over another does not automatically make the methodology unfair. The case also confirms that the margin of appreciation when considering award criteria is not a black and white issue. Rather, only where the treatment is “arbitrary or excessive” will the contracting authority have no further margin of appreciation. Finally, the fact that NHS England’s aims of achieving greater value, increasing competition, reducing cost, maximising desired outcomes and enabling comparison of inherently different bids/bidders were all deemed to be legitimate and were considered to outweigh the potential discriminatory effects on Abbvie, will provide further comfort to contracting authorities. Whilst contracting authorities should strive to avoid unequal treatment, the pursuit of legitimate aims may well provide a useful safety net. Practical tips Remain cognisant of the equal treatment principle: be aware of the principle of equal treatment throughout the process of setting and applying award criteria and consider the market in which you’re procuring. Where aspects of the bidding field are comparable, ensure that there is no differential treatment. Where there are clear differences between bidders (e.g. due to the existence of incumbents or differing product offerings) differential treatment may be justified to allow a level playing field and a like-for-like comparison. Be clear on the aims of the procurement process: ensure that the aims of the procurement are clear and clearly set out in procurement documents and that they are reiterated throughout the process so you are fully transparent. Provided that your aims are legitimate and the means of securing them are proportionate in the context of the procurement, the courts may decide in favour of the contracting authority/utility even if the evaluation methodology could favour one bidder over another.. Use experts for complex procurements: this case deals with esoteric specifics of a complex evaluation methodology and highlights the importance of specialist support when undertaking complex procurements. Perhaps due to the significance and high value of this procurement, NHS England engaged Game Theory and Auction Theory consultants to design and test their evaluation methodology and their evidence played no small part in the outcome of this case and the procurement. Recap quick notes- if a bidder could not provide the drug to the market a dummy price was imputed- argument this was an unfair advantage. This is rejected by the court on the basis it was neither abritary or excessive discretionary critieria to incease competition. Even if there wass any unqual treateemnt it was justified on objective grounds. Unmetered Access model- a fixed fee for unknoown number of patients was an unfair advantage. A bidder would be required to supply treatments exceeding the number of treatments they had committed to treat without addiitonal compnesation. Court held there was no unequal treatment because the rules applied to all bidders. If there was unequal treatment this was proprtionate to achieve legitimate aims. |
| Evaluation criteria- full disclosure | Lianakis ~ Lettings International v London Borough of Newham | Contracting authorities must disclose all award critieria and sub criteria including weightings upfront . |
| Evaluation criteria and additional schedules | Varney v Hertfordshire County Council | Additional return schedules does not amount to new sub criteria but viewed as sub criteria already disclosed as part of the award critieria |
| Automatic Suspension | Exel Europe Ltd v University Hospitals Coventry& Warwickshire NHS Trust. | The courts are approaching the automatic suspension regime in the same way an an application is made for an injunction during the standstill period. Lifitng of the automatic injunction was rejected |
| Evaluation criteria and model answer | Mears Limited v Leeds City Council, | In general model answers do not amount to new sub critieria. Where breaches are established the claimant needs to demonstrate that it would definitley have won the contract had the breaches not taken place |
| In House Award | Teckal | The Teckal exemption applies
where a contracting authority (the cases all involve local and regional
government bodies but it seems safe to extend the principle) contracts with a
legally distinct entity – usually this will be a company that the authority
has set up, either on its own or in concert with others (see below),– to
provide services. The conditions for
the exemption are that: The service provider carries out the principal part of its activities with the authority. The authority exercises the same kind of control over the service provider as it does over its own departments. There is no private sector ownership of the service provider nor any intention that there should be any. |
| Automatic Suspension | Newcastle Upon Tyne Hospital NHS Foundation Trust v Newcastle Primary Care Trust | If the automatic suspension is not lifted the trust would be forced into a contract with another provider for an interim service which would not be fair to either the commissioner or the successful bidder of the contract. Automatic suspension lifted. |
| Abandonment decision | Amey Highways Ltd v West Sussex County Council | The High Court considered whether it was lawful for a contracting authority to abandon a procurement process and whether that decision extinguished a bidder’s accrued causes of action. In this case the court found in favour of the defendants. A lawful decision to abort a process may well extinguish causes of action that may accrue in the future but would not lead to cancellation of those already in existence. Considering this distinction is important as failure to do so may result in an abandonment decision being challenged resulting in additional cost being incurred. |
| Ineffectiveness | Grounds for ineffectiveness | 1- Where the contract was directly awarded without notice or appropriate competition. 2. Where the contracting authority failed to run a compliant standstill period, which deprived the bidder of the opportunity to suspend the award process prior to award 3.Where the contract was awarded under a framework agreement and the rules on mini competition were not followed correctly |
| Casual link for damages | EFTA | A simple breach of public procurement law was sufficient to trigger the liability of the contracting autority to compensate the person harmed for the damage incurred provided that the other conditions for the award of damages were met, in particular, the condition of a casual link. This ruling goes against that of the UK Supreme Court in Nuclear Decommissioning Authority v Energy Solutions EU Ltd (now called ATK Energy EU Ltd) ([2017] UKSC 34) that a “sufficiently serious breach” is required to establish the liability of a contracting authority in such circumstances |
| Request for additional information | Supplementary information | Paragraph 3 of Article 56 of Directive 2014/24/EU (and regulation 56(4) of the Public Contracts Regulations 2015 (SI 2015/102)) (PCR 2015) provide that where information or documentation submitted by bidders is incomplete, wrong or missing, authorities may request bidders to send, supplement, clarify or complete the information or documents provided this complies with the principles of equal treatment and transparency |
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