PLC Public Sector reports:
Our public procurement case law digest for April 2012 focuses on the obligation on a contracting authority to seek clarification or further information from bidders and considers whether there has been a disagreement of what the requirements are between the ECJ and the High Court.
Please feel free to submit a comment below or contact us at: firstname.lastname@example.org if you have any views on the cases covered or think that we have missed a case that should be brought to the attention of public procurement practitioners.
You have to seek clarification of tenders (Clinton (t/a Oriel Training Services) v Department for Employment & Learning  NIQB 2)
The Northern Ireland High Court held that the Department had erred in not requesting a bidder to provide certain missing information. The Department had given other bidders, in a similar position, the opportunity to provide such “clarification” to their tenders. The court held that, while the position of the claimant bidder was slightly different to those who had been given the opportunity to provide further information, a request by the Department to supply the “missing” information would be regarded by any objective observer as fair, modest and reasonable in all the circumstances. Taking the evidence as a whole into account, the failure to seek the missing information from the claimant was disproportionate.
The court also held that the Department had applied an interpretation to one of the selection criteria which would not have been clear to all reasonable bidders. The Department’s misinterpretation of the criteria constituted a manifest error. Worryingly, findings about failures of Northern Irish government departments to comply with the rules on selection and award seem to be becoming more and more commonplace (see below!).
Oh no you don’t … (SAG ELV Slovensko a.s., and others v Úrad pre verejné obstarávanie (Case C‑599/10))
It would be easy to read too much into the Northern Irish decision and for contracting authorities to start worrying unduly about the level of clarification they must seek. However, the ECJ has also recently clarified the issue. In a decision that was not available to the Northern Ireland High Court, it has held that there is no requirement for national law to include a provision obliging the contracting authority to request that tenderers clarify their tenders in light of the specified technical requirements before rejecting the tender for imprecision or non-compliance with those specifications.
At first glance it could be argued that this case immediately renders the Northern Irish decision bad law. That is not necessarily the case, the ECJ made it clear that contracting authorities may exercise their discretion to seek correction or amplification of details of a tender where appropriate, provided that in exercising this discretion, the contracting authorities treat the various tenders equally and fairly. The Northern Irish decision was based on a finding (rightly or wrongly) that this discretion had not been exercised in an fair and equal manner.
Another Northern Irish contract award set aside (Easycoach Ltd v Department for Regional Development  NIQB 10)
The Northern Ireland High Court has been busy and set aside another contract award decision. On this occasion the court concluded that the Department had established selection criteria which were not sufficiently objective. It had also breached the principle of transparency in its application of those selection criteria and made manifest errors in concluding that the two successful bidders had satisfied the selection criteria.
The case also includes an interesting consideration of the power to undertake a post-award due diligence process and to the extent this is possible, how this should be carried out.