The need for "objectivity" when setting award criteria

Traffic Signs and Equipment Limited v Department for Regional Development and Department of Finance and Personal [2011] NIQB 25

This case concerned the contract award process for the supply of road traffic signs in Northern Ireland. On 4 April 2010, Weatherup J handed down judgment concluding that the Department had breached its obligations of objectivity and transparency under the Public Contracts Regulations 2006 by failing to explain and justify to the bidders the decision to allocate 40% of the weighting of award criteria to quality.

Importantly, the judge did not appear to take issue with the choice of sub-criteria making up the 40% quality score (delivery methods, 15%, environmental - packing, waste disposal and recycling, 15% and complaints system, 10%) or the scoring matrix (a panel of 7 evaluators individually scoring from 0-5 and agreeing a single set of moderated scores).

The judge instead took issue with the fact that Department had not communicated its decision to allocate 40% of the overall award criteria weighting to quality, and the remaining 60% to price. Central to that concern was:

In light of those considerations the judge held that, “the final adoption of a 40% measure of quality requires explanation and justification (...) and does not accord with the obligations of objectively and transparency” (at para. 66).

Turning to remedies, the judge then went on to find that the plaintiff has suffered or risks suffering loss or damage in respect of three contracts that it would otherwise have won had the price/quality split been 80/20 rather than 60/40 (at para. 74). On that reasoning the judge ordered the setting aside of the award decision in relation to those three contracts.

Considering the provision in the Regulations on automatic suspension, the judge held that the Department had to refrain from entering into any of the remaining 18 contracts (each pricing schedule being treated as a separate supply contract by the Department) until such time as both parties give notice that there will be no appeal or the time limit for appeal expires without either party lodging a notice of appeal. In the event of a notice of appeal being lodged the Department will continue to be required to refrain from entering into the 18 contracts.

Comment

As with many recurrent procurements, there would appear to have been a considerable history between the plaintiff and the contracting authority. What is however slightly odd in this case is the fact that the OJEU contract notice issued on 27 April 2010,

post-dating the internal discussions on the price/quality split, clearly sets out the 60/40 price/quality split. In addition, the judge would not appear to have taken issue with the sub-criteria and scoring of the quality criteria. Therefore, on the face of it, there does not appear to have been an issue in terms of complying with obligations of equal treatment and transparency when considering the position of the bidders when preparing their tender submissions. It is therefore unclear on what basis the 40% quality split lacked objectivity and transparency such as to constitute a breach of the Regulations.