New cases on selection/award criteria - good news for contracting authorities

Readers of this blog may be aware that the distinction between selection criteria and award criteria has been a hot topic in procurement law recently (together with issues around adequate disclosure of award criteria). The European Lianakis case in 2008 emphasised the importance of ensuring that only criteria aimed at assessing suitability of bidders in general should be used at selection stage, while award criteria ought to evaluate the merits of particular bids in response to a particular requirement.

A couple of recent European decisions against the IT services supplier European Dynamics (ED) are therefore interesting given that they cover this distinction between selection and award criteria. The cases are helpful to contracting authorities as they appear to suggest that, while the selection and award stages are distinct and require separate treatment, it is possible to use the same information at both stages, provided it is used in a way appropriate to that particular stage.

The first case concerned a procurement of IT services run by the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA). ED claimed that EMCDDA had made a manifest error in confusing its use of selection and award criteria and that it was not entitled to evaluate qualifications and experience at award stage. The judgment is helpful in that it appears to acknowledge that experience and qualifications may be used as award criteria provided this is done comparatively and in relation to the particular contract being let.

One of the stated award criteria was technical merit of human resources for the execution of the tasks 30%. The evaluation committee in this case gave reasons to ED as to why it was unsuccessful - one of these was that while the system architects ED proposed using had rich academic qualifications they had limited experience. The court took the view that given the stated award criterion of technical merit EMCDDA was entitled to comparatively evaluate qualifications and experience at award stage; the court certainly did not criticise it for taking this approach. Indeed the court commented that the evaluation report does not call into question [ED?s] knowledge or the experience which it has established. During the award stage those qualities are assessed in the light of the specific proposals made by the applicant regarding the implementation of the defined services.

This is helpful to public bodies as it appears to suggest that a contracting authority may use responses to the same set of criteria (in this case education and experience) in two ways; (1) at selection stage to de-select all those not meeting an absolute minimum standard and (2) at award stage to look comparatively at how the responses to those criteria score under a particular stated award criterion. The Court held that in applying the criterion relating to technical merit of the human resources the evaluation committee could clearly take into account the qualifications for and relevant professional experience relating to the required tasks. These did not constitute criteria in their own right but were an inherent part of the stated criteria (and therefore it did not matter that qualifications/experience had not been expressly stated as an award criteria in themselves).

The second case concerned a procurement of computer services run by the Publications Office of the EU. ED was unsuccessful and brought a claim against the Commission claiming that it was criticised for having exceeded the maximum number of pages permitted for best practice documents and that the Publications Office thereby confused award and selection criteria. ED argued that the documents concerned had already been evaluated in the selection procedure and that criteria designed to assess a bidder's general suitability to perform the contract in question could not be regarded as award criteria.

The Court noted that there must be a distinction between selection criteria and award criteria which are governed by different rules. However and interestingly it found that the assessment of the sub-criterion relating to best practice was different at the two different stages. At the selection stage the review involved assessment of the technical and professional capacity of the various tenders. However at the award stage the review covered compliance with the criterion of the number of pages to be included in the tender. Therefore if the tender had satisfied the selection criterion as to the content of the best practice documents there was nothing to prevent the Publications Office from taking into account in its award criteria the fact that the volume of best practice documents exceeded the maximum number of pages requested. This decision again is very helpful as it suggests that the same information can be used in different ways at each of selection and award stage.

It is of course true that all cases turn on their own facts to some extent; the court in these cases may well have been influenced by the fact that the claimant was European Dynamics which has brought a string of claims in relation to procurements where it has been unsuccessul in the last year or so. Nonetheless these cases do seem to show the court's willingness to take a common sense approach to selection and award criteria.

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