Problems with procurement
In October 2014 a claim brought by Willmott Dixon Partnership Ltd (“WD”) against the London Borough of Hammersmith & Fulham (“H&F”) came to court. The claim arose from a tender issued by H&F for a housing repairs and maintenance contract worth some £177m. WD were the incumbent contractor for H&F’s housing repairs and maintenance services, but the new contract was awarded to Mitie with WD coming second. The grounds of the challenge largely came from comments about WD’s tender after the award decision.
Before award decision letters were sent rumours circulated that Mitie had been awarded the Contract and that led WD to contact H&F about these rumours. During a telephone conversation H&F told WD that they had come a “fighting second”; they were cheapest on price but had lost on quality, particularly on its ICT proposal. Further; H&F said it had been looking for a “sea change” in the approach to the delivery of the services and that had not come across in WD’s submission that; there were concerns about WD’s current performance.
Before sending award decision letters H&F issued a press release commenting on some dissatisfaction with the current service provided by WD and that these problems would be reduced by “… teaming up with Mitie …”.
When the award decision letter was received WD saw that its total score was 85.32 and Mitie’s 86.15.
Shortly after that letter a debrief meeting was held. In summary, this feedback included:
- Concerns about WD’s current performance;
- WD proposed to use a particular poorly regarded subcontractor;
- WD had proposed to use a weak manager;
- WD’s bid had failed to show a “sea change” in delivery.
In relation to (a)-(c) above, WD argued that they were essentially selection criteria and not award criteria intended to identify the most economically advantageous tender – the principle being that a contracting authority must not evaluate tenders by reference to a tenderer’s ability to perform the contract. In relation to (d) above WD argued that it was evaluation criteria that was either not specified or not specified with sufficient clarity. The overall point was that these factors at (a)-(d) were irrelevant factors which should not have influenced the evaluation.
(In summary), the court decided that H&F’s references to things which they did not like about WD’s tender did not relate to any evaluation criteria and (on the facts and evidence of this case), they did not influence the award decision and so the claim was dismissed.
However, the ‘lessons learned’ from this case are that:
- All debrief explanations and internal discussions as to why a decision was made/marks awarded should be limited to evaluation criteria only
- In cases where a contracting authority wishes to help a losing tenderer in its future tendering opportunities by providing constructive criticism, it should be emphasised that those observations actually did not affect the marking of the tender but were being supplied as observation only pointers for the future
- The distinction between selection and award criteria should be very clear
- Where the contracting authority has some specific requirements or features in mind (however minor) it would help to avoid a lack of transparency claim if that is spelt out in the invitation document;
This decision also provides useful guidance as to what process the Court considers constitutes scoring decided by way of consensus; It would be a good discipline to have the evaluation team actually sign up to the consensus score and ensure that the record of decisions, scoring notes are all linked and can be referred back to the evaluation criteria.