5 procurement law cases analysed

In this webinar, recorded on 28 June 2023 as part of our 5 in 25 series, procurement law experts from Mills & Reeve analyse five recent procurement law cases in 25 minutes and draw out five lessons to be learned.

Key questions and answers

Please note that although the information in our our 5 in 25 webinars and FAQs was correct at the date of recording, this is an area of law subject to development and change.

Do check if in doubt as to the latest position - you can email [email protected].

Please note that the responses provided represent the general views of the public procurement team at Mills & Reeve, however they should not be relied on or treated as a substitute for specific advice relevant to a particular scenario/matter. If you require specific legal advice, our procurement team would be happy to discuss this further.

FAQs

If you state that the tender evaluation will involve different people scoring and that their scores would be averaged, would this be considered acceptable?

The recommended approach is to allow each evaluator to ascribe his or her own scores and then for all the evaluators to reach a consensus by way of a moderation process. As the Bromcom case shows, the courts do not consider “taking an average” to be a substitute for a proper moderation process (and in this case, taking an average was held to be a breach of transparency requirements).

Will case law such as this carry over to the new procurement regime as precedent? Or will it remain as best practice only?

Yes, although these cases interpret the PCRs, many of the core concepts and principles in the new Procurement Act 2023 will be replications or developments of those that already exist in the PCRs. As such, the courts will certainly look to current cases as an aid to interpreting the new regime.

Can evaluators move their scores up or down more than 1 point (ie, if scoring using 0-5 matrix, initial individual score 2, but during moderation moving their score to 4)? Is there any specific guidance around this?

Yes, the purpose of the moderation is for the evaluators to reach one consensus score, following a moderation discussion between them. This is likely to involve one or more evaluators amending their score. Obviously, where scores are revised downwards, this can be a risky area. The notes of the moderation meeting need to clearly articulate and record how the moderation discussion developed and the basis on which the evaluator considered it appropriate to update his or her score.

There is no specific guidance on how to run a moderation, and the PCRs are silent on the point. As such, there is flex to design a moderation process as the authority considers fit, albeit that whatever process is stated must be adhered to and must not offend against the general principles of transparency, equal treatment and non-discrimination.

What is the panel's preferred scoring matrix? We've used 0-3, 0-4, 0-5, now currently using 0-10

We do not have a particular view, and different procurements will suit different matrices on a case-by-case basis (depending on the requirement). The important element is that the matrix – however drafted – sufficiently delineates between each of the scores used (and that this is transparently disclosed so all tenderers can understand it).

Where overall scores have a small difference, eg, 0.50% or 1.0% or 1.25% etc, should scores be revisited (providing there are clear reasons for the change in score)? Should there be a threshold for the difference in score, eg, 5%?

We have understood from this question that you are referring to a situation where the margin between two or more bidders’ final scores is very small and that, according to a stated moderation process, this “triggers” a moderation of the scores.

The PCRs do not prescribe how the moderation process should work, only that whatever moderation is carried out is done so in a way which is transparent, non-discriminatory and treats all bidders equally. It would be important to stick to whatever moderation process you had originally set out in the procurement documents.

It would in theory be possible to state in your moderation process that, where the margin between two or more scores is very small (using whatever % the authority felt appropriate), that the moderation would be triggered and the scores would be looked at again to ensure confidence. However, this would need to be recorded and, where scores were revised meaning a change in identity of the winning tenderer, this is clearly a risk for a challenge from the newly disappointed bidder.

If the Trust is using a framework, does the Trust need to use the framework pricing template?

It is necessary to call-off contracts from a framework in accordance with the terms of that framework. Hence, if the terms state that the framework pricing template is to be used, then this is the route the Trust would need to take.

What can we do when a framework provider doesn't have a specification and/or hasn't asked for commercials, so there is nothing we can refer to when conducting a call-off or direct award?

Under regulation 33, a direct award is only possible where the framework sets out (1) all the terms governing the provision of the works, services and supplies concerned, and (2) the procurement documents have specified the objective conditions for determining which of the suppliers that are party to the framework agreement is to receive the contract. If there is no specification nor commercials, then it is hard to see that this test is met. The alternative would be to run a mini-competition – although this must be done within the parameters of regulation 33(11) – in particular, the terms and conditions must be based on, or be a development/iteration of, the original terms in the framework agreement itself and employ the award criteria originally stated in the framework itself.

Where do you stand on issuing an expression of interest on a framework before conducting a further competition? Say, for example, you invite all suppliers awarded to the framework to the EOI but you only invite those that have expressed an interest to the mini-competition.

The first thing to check would be whether the framework terms and conditions themselves give any steer on this point, as it is important not to do anything that contradicts the call-off process that is stated in the framework agreement itself.

Assuming the framework agreement is silent, we would then turn to Regulation 33(8(c)). This states that, where not all the terms governing the provision of the works, services and supplies concerned are laid down in the framework agreement, a call-off is to be made through reopening competition amongst the economic operators which are party to the framework agreement. On a strict interpretation, all suppliers would need to be invited to the mini-competition. However, an authority could choose to take a view that the issue of the EOI amounts to that invitation – and that if a supplier does not respond to the EOI, then there is no obligation to involve that supplier further in the mini-competition. It would be important if using an EOI in this way to make it clear that this is the invitation to the mini-competition, and that no further invitation will be issued to any supplier that does not respond.

I'm working on a framework that allows for direct award, the contract value would be around £250k. We are looking to conduct desktop comparison and, on that basis, to direct award compliantly. Do we need to inform all suppliers on the framework that they were considered and evaluated, or would it be sufficient to contact only the winning supplier? Just to clarify, throughout the process we would not need to contact suppliers, as their offers are available through eMarketplace (CCS).

You would need to check the framework agreement and make sure that you follow the process for direct award as stated in that specific framework agreement. If that process is silent, then looking at the PCRs, there is no requirement to notify other suppliers on the framework that a particular supplier has (compliantly) been awarded a contract via direct award. That said, there is a requirement to publish contract award information to Contracts Finder – even for call-off contracts – and hence other suppliers on the framework will have the means to become aware of the direct award (and, if it is not made compliantly, there may be a corresponding risk of challenge).

If a framework does not set out a process to call off a particular lot, would a mini-competition to all providers appointed to the lot be lawful or is the framework considered faulty and so the authority would have to establish another framework?

This would depend on the detail of the framework, but it would not be a “given” that the framework will be unlawful. The PCRs do contemplate using a mini-competition amongst all suppliers in situations “where not all the terms governing the provision of the works, services and supplies concerned are laid down in the framework agreement”. The design of the mini-competition would of course need to comply with the principles set out in regulation 33 in this regard.

Is there such a thing in law as a "re-procurement"?

No, there is no such concept in the PCRs. However, the term is used where a new procurement is run to procure a new contract to replace an old contract that is coming to an end. It is also sometimes used where a procurement process has stopped mid-way through and been “rewound” to address a compliance issue.

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