From Buyers Manual
Matters related to the evaluation of tenders are the hottest topic in EU procurement law. Suppliers are chasing shrinking budgets without the private sector having the ability to fill order books instead. Disappointed tenderers are increasingly likely to seek redress from the courts.
Evaluation of tenders touches on many topics:
- Transparency - This is now settled; the bidders must have all the information they need in order to formulate their best bid. This includes full disclosure of all the methodologies, criteria, sub-criteria and weightings that their tender will be evaluated against.
- Criteria - I still see selection criteria being used at award stage and the same assessment being carried out twice. This is a clear breach of the evaluation requirements.
- Specifications - The issue of “equivalence” is not clear cut. There is an increasing school of thought that just putting “or equivalent” against a stated requirement is not enough. To be squeaky clean a contracting authority should disclose what features will be taken as demonstrating equivalence.
- Equality of treatment - It is important that the evaluation process treats all bidders fairly. This means that evaluation of incumbent suppliers’ bids now bears more risk; and issues like membership of trade bodies clearly does not treat bidders from other EU states equally.
Often, the chosen evaluation methodology gives rise to risk hotspots. Any activity with human to human interaction such as presentations, open days, site visits and debriefs should be viewed as a risk hotspot. This is because of two reasons:
- Such interactions are inevitably free-form in that neither party knows exactly what the other is going to say. This leads to differing wording being used (leading to allegations of inequality of treatment); differing interpretation of responses among assessors (inequality again); or even responses introducing new assessment criteria (leading to allegations of lack of transparency) or responses confusing “selection” and “award” criteria; for example discussing a supplier’s experience at the award stage interview.
- In the face of a challenge it is difficult to prove to the court the content of the presentation / debrief / discussions without recording them.
I’d like to briefly mention below-threshold and Part B procurements. All too often I hear words to the effect that these are unregulated activities. This is not at all the case. Part B procurements are subject to parts 1, 8 and 9 of the Public Contracts Regulations. Part 1 contains the obligations of transparency and equality in just the same terms as for any other procurement. Below threshold activities are still subject to certain obligations (including those most heavily litigated) if they have a “cross border interest” – the difficult being that you won’t know that until you receive a challenge from a supplier in another EU state – at which point all that remains is to run up the white flag.
Although the law has tightened up considerably over the last few years it is important to recognise that courts are still reluctant to interfere with technical specifications or to start investigating whether one proposed solution is more desirable than another. Actual marking assessments of technical solutions remain largely in the hands of the contracting authority so long as the process and implied requirements of transparency, equality of treatment and non-discrimination are observed.
Martin Vincent
Head of Education Division
MACE&JONES
