PLC Public Sector reports:
Our March 2013 case digest includes the latest on the courts’ approach to deciding whether the disclosure of the award criteria for a procurement has complied with the requirements for transparency and equal treatment.
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.
Transparency of award criteria to be assessed objectively (Healthcare At Home Ltd v The Common Services Agency  ScotCS CSIH_22)
The Scottish Court of Session has confirmed a ruling dismissing an action seeking to set aside a decision by the Common Services Agency (CSA) to award a framework agreement on the basis, in particular, that the award criteria lacked sufficient clarity. The court concluded that the CSA’s formulation of the criteria in the ITT allowed all reasonably well-informed and normally diligent tenderers to interpret the criteria in the same way and in the way that they were applied by the CSA. The court also agreed that the CSA had not erred in its evaluation of the tenders and had provided sufficient reasons for its decision.
The most interesting aspect of the judgment is the approach that the court took to assessing whether the award criteria were sufficiently transparent. In particular, it is notable that the court rejected the need for detailed oral evidence as to the parties’ subjective views and understanding of the meaning of the criteria. Instead, it made an objective assessment of what a hypothetical and reasonably well-informed and normally diligent tenderer might anticipate or understand in the relevant circumstances. This ruling will be welcomed by contracting authorities on the basis that it will reduce the risk of future successful challenges and keep such procurement challenges more straightforward than they would otherwise have been had the court taken a different view and allowed the particular tenderer’s subjective views to be taken into account.
Balance of convenience favours lifting automatic suspension (Lowry Brothers Ltd & Ors v Northern Ireland Water Ltd  NIQB 23)
At first glance, the decision of the High Court of Justice in Northern Ireland to grant an application by Northern Ireland Water to lift the automatic suspension preventing it from entering into a framework agreement is rather unsurprising and consequently not too interesting. The court concluded that the plaintiffs did not have a good arguable case and even if they had had a strong case, the main ground of appeal was time-barred. However, what is interesting is that the court has provided a clear indication that even if these two factors had not been key, it would have considered that the balance of convenience lay in lifting the automatic suspension anyway. In coming to this conclusion, the court expressed support for the approach of Aikenhead J in Exel Europe v University Hospitals Trust  EWHC 3332 (TCC), that while damages in procurement claims may not be easily assessed, this does not give rise to the proposition that damages would be inadequate.
With each passing decision on automatic suspension by the UK courts, it becomes more certain that the introduction of the new remedy in place of a requirement to obtain an injunction has not had the effect of materially shifting the balance of power in a public procurement dispute.
General Court: failure to accept contract gave right to reject (Nexans France v European Joint Undertaking for ITER and Development of Fusion Energy (Case T-415/10))
The General Court dismissed an appeal by Nexans France against a procurement process tendered by the European Joint Undertaking for ITER and the Development of Fusion Energy for the supply of electrical equipment. The authority had clearly set out in the tender documents that tenderers had to accept all the stipulations and conditions set out in the contract and attached annexes. Nexans failed to do so and the court held that this gave the authority the right to reject a bid without evaluation.
This judgment should help to make public bodies feel more confident in rejecting hedged tenders.
Ombudsman: what is acceptable as evidence of prior experience? (Complaint 2519/2011/EIS against the Translation Centre for the Bodies of the European Union)
In rejecting a complaint about alleged unfair exclusion from two tender procedures organised by the Translation Centre for the Bodies of the European Union, the Ombudsman accepted that the Translation Centre had been entitled to conclude that the complainant had not proved that it had the necessary experience, as required by the tender documents. The complainant had submitted copies of purchase orders to evidence prior experience but had not given any evidence that the work to which the purchase orders related had ever been carried out. Further, the Translation Centre had been correct to conclude that even if the purchase orders had provided the necessary evidence of delivery, they did not provide a sufficient amount of information on exactly what the services provided were.
Again, this ruling may give procuring authorities some reassurance that they can reject bidders that fail to adduce adequate evidence that they meet the authority’s required technical standards.