Case Study
Woods Building Services v Milton Keynes Council - [2015]
On 14 July 2015, the High Court handed down a significant Judgment which has wide-ranging ramifications for contracting authorities who fail to evaluate tenderers’ bids in accordance with the obligations imposed upon them by the Public Contracts Regulations 2006/2015, and in accordance with their published award and scoring criteria.
Read the key errors made below to find out why we must record comments correctly.
This case concerned an award procedure for a framework agreement for asbestos removal and reinstatement services.
The High Court found that manifest errors in scoring existed in several respects and that these would have had a material effect on the outcome of the process.
1. First, in relation to several matters – its method statement, mobilisation plan, proposal for managing the defect correction period and proposal for dealing with waste material - A tenderer should have been given a mark of zero rather than the actual marks received, because it failed in each case to address certain significant matters. This illustrates that there is a manifest error if the authority does not follow the clear rules it has laid down for scoring.
2. Secondly, the Council had failed to disclose a sub- criterion that it used, namely whether or not there was a dedicated project manager. It violates the transparency principle not to disclose to tenderers in advance of tendering any sub-criteria used.
3. Thirdly, the Court concluded that the Council had violated equal treatment in dealing with the issue of a project manager as it had concluded that Tenderer A was not offering a manager dedicated to the project when this was not clear in the tender, but had, on the other hand, concluded that another tenderer B was offering such manager even although the tender of tenderer B was not itself in fact clear on that.
4. Fourthly, the Court found there was a breach of equal treatment and also a manifest error in the way the scores were awarded for each tenderer’s health and safety proposals. This arose simply out of the fact that, having examined the details of each tender on this point, including various strengths and weaknesses, the Court concluded that it could simply see no justification for the much higher score awarded to Tenderer B.
5. Fifthly, the Court concluded that there was a manifest error in relation to the scores awarded to tenderer B for the proposed communication procedures and for environmental protection, as the Council again had no evidence to justify the high score awarded to tenderer B.
The Council had not made notes to justify the scoring, and the case illustrates that it is much more difficult to defend judgements in a tender evaluation where that has not been done.
The Court’s conclusion on the fourth and fifth points above provides an example of a successful claim based on manifest error in relation to a discretionary assessment – when the Court could actually see no plausible justification for any authority to make such a decision.
It can be noted, however, that this case was unusual because of the absence of contemporaneous notes that gave substantive explanations for the reasons for scoring. (The notes made largely just paraphrased the scoring criteria themselves by stating, for example, where a score was given that required a “high standard” that the tender showed a “high standard”). This was given significant emphasis by the judge. It is clear that the court will give much weight to plausible explanations of scoring that are recorded at the time, and will be less willing to interfere with scoring where such plausible explanations exist. This means that, to defend against challenges, it is very valuable to have a clear and contemporaneous audit trail relating to all significant decisions in the procedure.
Given the changes made to the scores, the effect of the decision was that Woods should have been awarded the contract.
In its later judgment dated 24 July 2015 on what remedy should be granted to Woods, the Court ordered the Council to set aside its contract award decision, amend its records to reflect the lawful tender evaluation scores, as found in the Court’s judgment, and declare that Woods had submitted the most economically advantageous tender. However, the Court refused to order the Council to contract with Woods and instead confirmed that damages was the appropriate remedy.
The Council then had to run a new procurement exercise.