New case on award criteria - good news for contracting authorities?

Readers who have been following public procurement case law will recall that the disclosure of award criteria has featured as a headline topic and major risk area for contracting authorities. The European case of Lianakis held that contracting authorities must generally disclose all award criteria and related sub-criteria, together with percentage weightings attached to each, in the tender documents upfront. This was confirmed in the High Court with the decision in Lettings International v London Borough of Newham, which concerned the same issue. In both of these cases, the public body had disclosed the headline award criteria and weightings but had subsequently decided on sub-criteria during the evaluation, without any disclosure. It has been standard practice since those cases for us to advise clients that the safest course is to always disclose upfront all criteria and sub-criteria together with their weightings.

This new case Varney v Hertfordshire County Council heard in the High Court recently seems to indicate a possible relaxation of the position by the courts. The case concerned a tender for waste management services at 18 sites. The Council ran a restricted procedure procurement process and stated that the contract would be awarded to the 'most economically advantageous' tender with the award criteria being Price (65%) and Customer Satisfaction (35%). There was a PQQ stage at which the claimant Varney was selected to tender.

The ITT required the bidders to complete 'Return Schedules' and submit these with bids. The Return Schedules asked for details of the bidders - proposals in relation to seventeen different areas including Customer Service Dealing with Hazardous Waste Dealing with Emergencies and Severe Weather Conditions Site Cleanliness and many others. At the beginning of each Return Schedule the Council set out the service level expected in relation to that area although the relative importance of each of the Return Schedules was not detailed.

Varney argued that each of these Return Schedules amounted to a new award criterion which should have been disclosed upfront together with relative weightings. The judge disagreed and held that each of the Return Schedules simply dealt with an aspect of either price or customer satisfaction (the two award criteria). The judge on that basis said that 'I do not consider that to be a different of new sub-criterion let alone a separate award criterion. The judge was careful to state that previous case law would have required disclosure of the Return Schedules had they amounted to new award criteria or sub-criteria. But in this case they merely amounted to sub-criteria of the award criteria already disclosed and weighted.

This case is obviously helpful for contracting authorities. The judge appears to be minded to distinguish the situation in Lianakis and Lettings International on the basis that in those cases the undisclosed 'sub-criteria' at issue actually amounted to separate award criteria proper. However in this case the judge took the view that the Return Schedules were sub-criteria in the proper sense of the word i.e. merely more detailed aspects of the main award criteria.

The case seems to have turned quite heavily on its own particular facts and particularly on the credibility of the claimant's witnesses. The safest course remains for contracting authorities to always disclose award criteria sub-criteria and their respective weightings. However the case will be a useful authority to turn to if a contracting authority is ever challenged on disclosure of sub-criteria. If the sub-criteria are merely a detailed facet of the main award criterion this case will make it more difficult for a challenger to establish a breach.

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