11 August 2011 | Joseph Ward

Do you have to explain your evaluation criteria in a tender?

The case

This case concerned a challenge to the legality of the award of public contracts for traffic signs. A number of breaches of the Public Contracts Regulations 2006 were alleged, with the most interesting ground concerning the legality of weighting quality at 40 per cent against 60 per cent for price. The claimant, who would have preferred a higher weighting for price, alleged the weightings lacked objectivity and constituted a manifest error.
The Court held that simply listing the weightings may not suffice to satisfy the requirements of transparency and objectivity, as the rationale behind the allocation of marks may require justification. Determining the weightings is a matter for the contracting authority. However, that decision must not be bereft of explanation. Explanation was required in this case due to the long history of concern (dating back through a number of previous competitions) about the objectivity of the criteria concerning quality and because the marks available for quality effectively determined the award of the contracts and resulted in the award of the contracts to a supplier who had submitted a price higher than other bidders.

The Court found the failure to provide an explanation breached the principles of transparency and objectivity. But the Court did not find there was a manifest error in assigning 40 per cent of the marks for quality.

The assessment as to whether such a weighting was appropriate
had never been carried out, and it was the failure to adequately make that assessment that constituted a breach.

What it means

This case was based on very specific facts and its importance should not be overstated. But it would be prudent for contracting authorities to internally document the reasons as to why they arrived at their decision as to the allocation of the marks. This will be the case when a significant percentage of the marks is available for criteria that require an element of subjective assessment, as in such instances there is an increased risk of discrimination.

☛ Joseph Ward is a solicitor at Field Fisher Waterhouse