PLC Public Sector reports:
Last week, London hosted the second Procurement Lawyers’ Association (PLA) event on evaluation. The primary purpose of the event was to introduce the PLA evaluation working group’s paper on evaluating public sector tenders. However, as with previous PLA events, attendees were spared what, at the end of a rather hot and muggy July afternoon, could have been a rather taxing lecture on the paper. Instead, attendees were asked to provide comments on a case study prepared by the event organisers with a view to highlighting the most interesting and contentious issues identified by the working group.
The event was well attended and posed some interesting questions, which were the subject of a considerable amount of debate among the attendees.
Unsurprisingly, top of the list of contentious issues was the use of prior experience as an award, rather than selection criteria. Some attendees argued that it was just “common sense” that a public sector purchaser will want to look at tenderers’ prior experience and take this into account when awarding their contract. They sought to reconcile this with the decision in Lianakis by arguing that relative experience could be taken into account at award stage and that Lianakis was primarily concerned with preventing evaluation of the same thing both at the selection and award stages. The recent High Court decision in Varney was put forward to support this argument, which, although it concerned financial standing, does seem to suggest that there is something of a grey area in which supposed selection criteria can resurface at award stage.
However, the most popular view voiced at the session seemed to be that using prior experience as award criteria would not comply with the ECJ’s findings in Lianakis, which took a rather more black and white approach to the issue, holding that something noted as a selection criteria in the Directive was simply not justifiable as an award criteria. This black and white approach is undoubtedly also the view of the Commission. This view also brings into question whether Varney was correctly decided and if it is sensible to rely too heavily on a case which seems to have been decided by a judge quite clearly unimpressed by the witnesses for the aggrieved tenderer.
It is important to realise that taking a conservative approach does not necessarily mean that prior experience cannot be taken into account. Other valid award criteria provide tenderers with ample opportunity to highlight and score marks for their prior experience. For example, “deliverability”; any response to a question about how a solution can/will be delivered will rely heavily on the experiences and successes that a tenderer has previously had. (Although it should be noted that the ECJ in Lianakis also held that the ability to deliver by the anticipated deadline is not a valid award criteria.) Comment was also made that those advocating that experience had to be an award criteria may need to make more robust use of the opportunity to look at experience at the selection stage.
Other issues highlighted at the event included:
- Evaluating single-lot solutions against comprehensive proposals where both options are available to bidders. It will often seem sensible to break down a procurement into as many lots as possible to give more suppliers the opportunity to tender, particularly in view of the SME agenda. However, this can create problems when it comes to evaluation, particularly if service delivery across the lots requires any coordination. Difficulties also arise in relation to price; contracting authorities must specify if any marks are available for economies of scale if a single bidder wins more than one lot.
- The dangers (and illegality) of introducing new award criteria, particularly when authorities may unwittingly do so by providing evaluation panels with detailed scoring guidance developed after bids have been submitted.
- The perils of using independent technical panels – can they be given too much power and is there a danger of introducing conflicts of interest?
- The need to make sure that decision/award letters refer back to award criteria (or more importantly the need for the evaluation process to follow the award criteria!).
- The role of presentations and whether they should be evaluated. The prevailing view seemed to be that they could not, of themselves, constitute award criteria but can be a useful means of evaluating technical requirements or moderating written technical submissions.
The discussion of the case study was followed by an interesting presentation on Decision Theory by Derek Bunn from the London Business School, who highlighted how far as a science public sector evaluation probably needs to develop. However, he did sympathise with the plight of public procurement lawyers and officers having to set detailed weighting criteria at the outset of a process when the standard approach is to do so after the scores have been collated (it would be an interesting meeting with the Commission arguing the case to allow this approach!). The event concluded with Alison Leitch, a local government lawyer taking a humorous look at the challenges faced by local authority lawyers in dealing with limited budgets, limited timescales, and officers who are often unaware of or unwilling to comply with some of the rather inconvenient aspects of the public procurement regime.
The PLA is proving to be a useful forum to discuss knotty issues and benefit from other members’ experience and views on the latest case law, as more and more aggrieved bidders seek to bring challenges for alleged breaches.