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Or, on the other hand, as Mo D argued, was it a reasonable expectation that tenderers looking at the ITT should have “put two and two together” and realised that exclusion would be logical consequence of a failure on question 6.3?The judge considered some of the leading cases in this area, in particular the cases.The claimant, who was also the incumbent provider, emerged from the evaluation as the most economically advantageous tender, according to the stated award criteria.However, on one particular question (“question 6.3”) relating to ensuring safe working cultures not only within the tenderer's own organisation but also down the supply chain, the claimant’s response was judged to be inadequate as it did not fully address how the tenderer would pass on health and safety obligations to its own contractors.It is not uncommon therefore to ask the Authority to extend the relevant time period and to provide relevant documents.Indeed the new Technology & Construction Court (“TCC”) guidance on public procurement claims encourages the early disclosure of documents if necessary into a confidentiality ring. If the latest decision from the TCC is anything to go by the one thing a bidder cannot do is ask the court to extend time without very good reason even where there is a perceived lack of information.The section of the ITT on technical requirements contained an example technical evaluation table, which showed the weighting and scores available, up to a possible score of 100%, for the following questions: • Question 1 – Capability; • Question 2 – Customer Relationship; • Question 3 – Supply Chain Management; • Question 4 – Value for Money; and • Question 5 – Insurance It was clearly stated that failure to meet a minimum standard of “good confidence" for any of these five questions would result in rejection of the tender.Significantly though, the technical evaluation for Question 6, Safety and Quality Management (of which question 6.3 was obviously a part), was included here.
Proceedings were issued to automatically suspend contract award and in the subsequent application to lift that suspension the court was asked to consider a number of things.Indeed, Cabinet Office guidance explicitly states that SQ evaluation methodologies must make candidates expressly aware of any SQ questions where a “fail” result will lead to disqualification on that ground alone. Two things which make claims for breach of the Public Contracts Regulations so daunting for unsuccessful bidders are the perceived inequality of arms in terms of the information available to the challenger and the Authority and the need to get on with the claim with more than usual speed.Regular visitors to this site will know that sometimes a bidder might have as little as 10 days to make up its mind about whether to issue proceedings (compared to a 6 year time frame for breach of contract claims) and that once the button has been pushed a quirk of the Regulations and the court rules means that you only have a further 7 days to put in the detail of the claim (compared to 14 days normally).The case highlights to contracting authorities the risks of ambiguity in the evaluation methodology and need for the evaluation criteria to make it absolutely and explicitly clear where a “fail” result will lead to rejection of the bid.
Note that this is the case not only in relation to the ITT stage (as in this case) but also during the selection phase.The ITT did not indicate that a "pass" score for each part of Question 6 was a minimum standard that had to be met to make the tender technically compliant.