Contract Awards

January 2nd, 2018 by James Goudie KC

In MLS (Overseas) Ltd v SoS for Defence (2017) EWHC 3389 (TCC) O’Farrell J restated the principles as follows:-

(1)        Any procurement must be conducted in accordance with the obligations of (i) transparency. (ii) equality of treatment, (iii) procedural fairness, (iv) good administration, and (v) fairness: paragraphs 55 and 58;

(2)        Any decision is required to be (i) rational and (ii) free from manifest error: paragraph 58;

(3)        The principle of transparency is that the award criteria must be formulated in such a way as to allow all tenderers to interpret them in the same way: paragraph 59;

(4)        That requirement sets a legal standard: ibid;

(5)        The question is not whether it has been proved that all actual or potential tenderers had in fact interpreted the criteria in the same way;

(6)        The question is whether the Court considers that the criteria are “sufficiently clear” to permit of “uniform interpretation by all tenderers”: ibid;

(7)        The test is an objective one: paragraph 60;

(8)        It is based on –

(i)          an interpretation of the relevant documents,

(ii)        taking account of all the circumstances of the particular case: ibid;

(9)        Contracting authorities cannot ask “clarification” questions that involve “negotiation” –

(i)          with any tenderer on a confidential basis, or

(ii)        that unduly favour, or disadvantage, the tenderer to whom the clarification is addressed: paragraph 61;

(10)      However, that does not preclude the (i) correction, or (ii) amplification of details of a tender, where appropriate, “on an exceptional basis” particularly when it is clear that “such amendment does not in reality lead to the submission of a new tender”: ibid;

(11)      A contracting authority must comply with the decision-making procedure set out in the procurement documents: paragraph 62;

(12)      The Court will not substitute its own decision for that of the contracting authority: paragraph 63;

(13)      Provided that the obligations of transparency and equal treatment have been satisfied, the Court will interfere with the decision of a contracting authority only where there has been a “manifest error”, such as where –

(i)          there has been a failure to consider all relevant matters,

(ii)         there has been consideration of irrelevant matters, or

(iii)        the decision is “irrational”, in that “it is outside the range of reasonable conclusions open to it”: ibid.

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