But what happens when a tenderer is sent the Standstill letter and the scores that they have received appear to be inconsistent with the evaluation and scoring criteria?
We have been involved in a case recently where a major social care provider had taken part in a public procurement exercise and had been successful at PQQ stage. Next they were asked to submit method statements responding to specific questions asked in the ITT, as well as to submit an hourly rate based on a set weekly volume of hours. Each method statement was marked between 0 (fail) and 5 (Excellent). No surprises so far!
However, when the Standstill letter was received, it delivered bad news and our client was informed that they had been unsuccessful. They were provided with their overall scores together with those of the successful tenderers. However it was unclear why they had been scored so low for quality and why the winning bidder had scored so high. The client had not been provided with adequate information on the reasons for the scores, including the characteristics and relative advantages of the winning tenderer. This is a clear requirement of the relevant procurement regulations now enshrined in Regulation 86 of the Public Contracts Regulations 2015.
Our client wrote to ask for proper feedback and so did we, but it was not provided. The dilemma for our client and so many disappointed tenderers is that without adequate explanations, it is difficult to know whether the process has been run fairly and in compliance with the Regulations or not. The added difficulty is that the Regulations provide very tight timescales for challenge. Effectively, unless a claim is issued at Court within 30 days from when a tenderer knew or ought to have known that there was the basis for a claim, then any subsequent claim will be out of time.
Usually, Commissioners will provide sufficient feedback to enable tenderers to understand why they have not won. However in this case it was not provided and on day 29 following the issue of the Standstill letter, we were instructed to issue a claim at Court.
It transpired during the course of the legal proceedings that the procurement team had retained little contemporaneous evaluation documentation, having destroyed the notes made by evaluators after the meeting in which tenders were scored.
Upon receipt of the method statements provided by the successful tenderers, our advice was that without the necessary records, there was no adequate explanation for the scores that had been awarded and that this breached the principles of equal treatment and transparency in the scoring of the bids.
Fortunately, there had been another case like this one that had recently gone through the Courts in 2015, called Woods Building Services v Milton Keynes Council. This was a case where Woods Building Services had been tendering to provide asbestos services to the Council and were not appointed. It was almost on all fours with the case of our social care provider, in that there was also a complete lack of contemporaneous records as to how the quality questions were scored. The judge said that if Commissioners don’t keep adequate records from the evaluation panel to explain why they scored the way they did, this could automatically amount to a breach of the Regulations because there is a lack of transparency. The judge even said what he thought the scores should have been for some of the questions and in his judgment said that Woods should have won.
Coming back to the case of the social care provider, the Commissioner fought hard in the litigation to try to persuade our client to discontinue the process; it took great resolve to keep going. Eventually, we got close to trial and the Commissioner said that they would be prepared to attend a mediation process. At the mediation a confidential settlement was reached where the Commissioner agreed to pay to our client a substantial sum in damages for their loss of profit and other expenses, as a result of failing to be awarded a contract. The majority of our client’s legal costs were also paid.
So what should tenderers and Commissioners learn from these cases, as they move through the tender process?
By taking early advice both tenderers and Commissioners can ensure that the right process is undertaken and challenges can be kept to a minimum.
Please contact Andrew Lancaster.
For part 3 in this series of short podcasts, Chris Lloyd-Smith interviews senior associate Madhur Sharma on how she has been coping during these unprecedented times.
Last week, the NHF published its final version of its new Code of Governance and made some important changes from the previous draft that will impact on those housing associations looking to adopt it.
As the end of 2020 beckons, we take a look at what progress the Sterling market has made in its preparations for the end of the London Interbank Offered Rate (LIBOR) on 31 December 2021.
Finally, there is a glimmer of hope that perhaps the Covid-19 pandemic could be reaching its end.
For part 2 in this series of short podcasts, Chris Lloyd-Smith interviews senior associate Lisa Whitehouse on how she has been coping during these unprecedented times.
Delayed since Spring 2020 as the Government tackled the Covid-19 crisis, Tuesday 17 November saw the publication of the Social Housing White Paper, setting out the future regulation of the sector
In this ebriefing, we examine how the duty holder regime will apply to social housing providers with existing HRRBs in their housing stock.
Following Katherine's "heads up" last week, the Government has now confirmed that for claim periods post 1 December, employers will not be able to claim for employees who are serving their notice
For part 1 in this series of short podcasts, Chris Lloyd-Smith interviews solicitor Puja Desai on how she has been coping during these unprecedented times.
Over 100 trainees and future trainees from Birmingham joined the BTSS for a webinar to address concerns around training remotely and qualifying during a possible recession.
To receive invitations to our events, as well as information and articles on legal issues and sector developments that are of interest to you, please sign up to Newsroom.