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Robust and fair evaluation processes in public procurement are important

Robust and fair evaluation processes in public procurement are important
Friday 21st October 2016

Contracting authorities are required to treat all bidders equally and without discrimination, and must also act in a transparent and proportionate manner. This is of particular importance when evaluating each bidder’s tender submission in line with the published award criteria.

The recent case of Energysolutions EU Limited v the Nuclear Decommissioning Authority highlights the importance of these fundamental principles. In this case, the Nuclear Decommissioning Authority (the “NDA”) was found to have manipulated its evaluation of a long-running procurement process, which led to the NDA awarding the contract to a bidder which should have been disqualified for not satisfying a mandatory requirement set out in the NDA’s own tendering rules.

The NDA did not complete the evaluation process in accordance with the spirit of public procurement law. Instead, it was found to have undertaken the process with the active aim of restricting the amount of information that would be available to any potential challenger to the award decision. By restricting the availability of information, the NDA sought to avoid any grounds for a challenge arising in the first place. Unfortunately, this case can be seen as an example of how not to evaluate a public procurement process.

  • Amongst other examples of bad practice, the NDA:
  • Discouraged evaluators from making contemporaneous notes of decisions or scores;
  • Shredded those notes which were made in relation to the evaluation process;
  • Did not provide the evaluators with sufficient time or knowledge to properly evaluate bids;
  • Did not permit notes of dialogue meetings, which meant solutions encouraged at dialogue stage were marked down at the evaluation stage as evaluators had forgotten their discussions; and
  • Allowed scoring criteria to be applied inconsistently across bidders.

Ultimately, the court found that had the scoring process been completed correctly, even if the successful bidder had not been disqualified at an earlier stage, Energysolutions would have won the tender.

It was decided that in order to uphold its duty of transparency, the NDA should have maintained and encouraged the keeping of contemporaneous records throughout the evaluation process, and certainly should not have shredded them. In contrast to the NDA’s approach, the court noted that an ability to adequately justify its decision making procedure with the aid of properly generated records would have protected the NDA from future litigation initiated by disappointed bidders.

This case reiterates the importance of open and transparent evaluation procedures when engaging in a selection process for awarding a public contract, and ensuring the project and evaluation teams are correctly prepared and have suitable and sufficient time to undertake the evaluation process. Contracting authorities must adhere to their scoring criteria when evaluating bidders, be consistent in the application of such criteria, and must also maintain records of their process.

For any queries regarding the evaluation process, or public procurement in general, please visit our procurement page or contact: