J Varney & Sons Waste Management Ltd v Hertfordshire County Council (Rev 1) [2011] EWCA Civ 708

Case No A2/2010/1636[2011] EWCA Civ 708
IN THE COURT OF APPEAL (CIVIL DIVISION)
[2010] EWHC 1404 (QB)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
The Hon Mr Justice Flaux
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 21 st June 2011
Before
LORD JUSTICE RIXLORD JUSTICE HOOPERLORD JUSTICE STANLEY BURNTON
Between
J VARNEY & SONS WASTE MANAGEMENT LIMITEDAppellantHERTFORDSHIRE COUNTY COUNCILRespondent
Jason Coppel (instructed by DMH Stallard LLP) for AppellantJohn Howell QC and James Segan (instructed by Chief Legal Officer, Hertfordshire CC) for RespondentHearing Hearing dates : 16, 17 May 2011
Judgment

Introduction

[1]This is the Appellant’s appeal against the order of Flaux J dated 16 June 2010 dismissing its claim against the Respondent Council for damages under regulation 47(6) of the Public Contracts Regulations 2006 (“the Regulations”) for breach by the Council of its obligations under those Regulations. Like the judge, I shall refer to the Appellant as “Varney” and to the Respondent as “the Council”.[2]The relevant provisions of the Regulations were set out by the Judge as an Annex to his careful judgment. I shall do the same. I shall also take the facts from his judgment.

The facts

[3]The claim arises from Varney’s unsuccessful tender for contracts awarded by the Council for the operation of its Household Waste Recycling Centres (“HWRCs”).[4]For the award of the contracts, the Council elected to adopt the restricted procedure laid down by regulation 16 of the Regulations. On 1 June 2007 it sent a contract notice (published in the Official Journal of the European Union on 5 June 2007) indicating that it was seeking service providers for the relevant contracts which had an estimated value of £12.5 million. The Council elected to state the award criteria and their weighting in that notice. The notice indicated that the award criteria would be:
“The most economically advantageous tender in terms of the criteria stated below: 1. Price. Weighting: 65. 2. Customer satisfaction. Weighting: 35.”
The notice invited submission of requests to participate by 5pm on 27 July 2007.[5]Pursuant to the restricted procedure there were Pre-Qualification Questionnaires completed by the 11 entities (including Varney) who wished to be invited to tender. It was at this stage that it was for the Council to decide which of the would-be tenderers should be invited to tender, applying the selection criteria set out in Regulations 23 to 25. These relate to matters of conduct and probity, economic and financial standing and technical and professional ability. In the event, one party withdrew but the Council selected all the others and invited them to tender.[6]The Invitation to Tender (“ITT”) was sent to all ten entities by email on 23 June 2008. It consisted of three volumes. Volume I consisted of instructions for tendering together with drafts of relevant documentation and the Conditions of Contract. Volume II consisted of the Return Schedules. Volume III consisted of the various appendices to the new contract.[7]Paragraph 2.1 of the instructions stated:
“The tender analysis will be on an individual site basis although the Tenderer must indicate with its Tender its particular requirement for minimum numbers or groups of sites for which he wishes to be considered. All submissions will be evaluated on the basis of: 2.1.1. most economically advantageous to Hertfordshire County Council (65%) 2.1.2. resources (including staff) to be allocated to the delivery of the Services and the manner in which the Tenderer proposes to provide the Services in order to deliver outstanding customer satisfaction (35%).”
It was accepted at trial that the headline criteria had been correctly stated in the Official Journal and that the Council did have and did apply a lowest price criterion as set out in the contract notice published in the Official Journal and (albeit inaccurately described, as to which no point is taken) in paragraph 2.1.1 of the ITT.

All submissions will be evaluated on the basis of:

[8]Paragraph 2.5 of the instructions stated:
“The Tenderer must also submit with its Tender in Volume II: Return Schedules: … 2.5.2 details of proposed staffing and labour levels together with details of any qualifications to demonstrate technical competence, health and safety, first aid, customer care etc. Minimum numbers of staff to be permanently employed at each Site must be such that all of the requirements of the Contract are complied with, maximum quantities of material are separated for composting, recycling, reprocessing and re-use and Customers given no reason to complain about the level of service provided.”
[9]Paragraph 2.16 of the instructions stated:
“Any queries arising from the Tender Documents which might have a bearing on the offer to be made should be raised with Mr MG Shaw as soon as possible (preferably in writing) and in any case not later than Friday 25 July 2008.”
[10]The Return Schedules were described as follows: 1 Household Waste Recycling Centre Servicing; 2 Customer Service and Staff Training; 3 Controls on Non Household Waste and Adherence to …Council Policy; 4 Dealing with Hazardous Wastes; 5 Increasing and Encouraging Recycling; 6 Health and Safety; 7 Welfare and Amenities; 8 Details of Tenderer’s proposed Plant and Equipment; 9 Staffing Levels at the Household Waste Recycling Centres; 10 Contractor’s Recycling and Reporting Proposals; 11 Contractor’s Re-Use and Reporting Proposals; 12 Incentivisation of Household Waste Recycling Centre Staff; 13 Education of Residents and Added Value for the Council; 14 Dealing With Emergencies and Severe Weather Conditions; 15 Internal and External Site Cleanliness; 16 Preamble to the Schedule of Rates and the Schedules of Rates and 17 Summary of Completed Return Schedules and Other Information.[11]At the front of the Return Schedules were instructions for completion which stated:
“Tenderers must complete each of Return Schedules 1 to 15 giving full details of the methods it intends to employ to carry out the particular aspect of the Service provided. Tenderers must also complete Return Schedule 16, the Schedule of Rates, for each Site for which a tender is submitted giving the tendered Site Management Charge. Tenderers must also complete Return Schedule 17, the summary of completed Return Schedules and other information required.”
[12]At the beginning of each of the Return Schedules 1 to 15, the Council set out in some detail the standard of Service which it expected and required from tendering contractors. These Return Schedules were to be used and were used by the Council to assess the bids as regards the other criterion, apart from price, of customer satisfaction.[13]Return Schedule 9, Staffing Levels stated inter alia:
“As required under Clause 13 of the Conditions of Contract the Contractor must provide sufficient numbers of suitably qualified Staff to both carry out the Services and provide excellent Customer service at all times.”
This Return Schedule then required the tenderer to set out the staffing levels for each of the sites for which it was tendering.[14]The Preamble to the Schedule of Rates, Return Schedule 16 provided, inter alia, as follows:
“The rates and prices shall include for the provision of personnel, supervision, dealing with consignment notes where required and providing all necessary documentation, consumable materials, insurance, overheads and profit and every incidental and contingent cost and charge whatsoever for compliance with the Conditions of Contract and the Specification. … THE COUNCIL SEEKS A PRICE FOR ALL ITEMS IN THE SCHEDULES OF RATES AND A SEPARATE RATE MUST BE SUBMITTED AGAINST ALL ITEMS. FAILURE TO SUBMIT SEPARATE RATES AGAINST ALL ITEMS FOR ANY PARTICULAR SITE WILL RENDER THE TENDER NON-COMPLIANT, ….. Items the price of which are the same must not be bracketed and the use of the word “included” against any item is not permitted. For Sites for which a tender is not being submitted the words NO TENDER must be entered against the item for total weekly cost. For a weekly Site Management Charge involving no payment by the Council to the Contractor or no payment by the Contractor to the Council the rate entered should be ‘NIL’”
[15]The Schedule then required the tenderer to set out for each of the Sites for which it was tendering the weekly Site Management Charge, broken down into separate weekly figures for staffing levels, controls and management, plant and equipment, welfare and amenities and insurances and overheads.[16]One of the ways in which the Council sought to encourage recycling by site operators under the outgoing contracts was the Recycling Incentive Bonus Scheme (“RIBS”). This awarded to the operators of the sites a bonus of 50% of the theoretical cost of disposal of each type of waste (for example compost or wood) less the actual cost of disposal. The rationale behind the RIBS was that the more the site operator could reduce the actual waste by(i) restricting the waste accepted at each site to household waste only,(ii) maximising the materials removed for recycling and re-use and(iii) packing containers densely so as to reduce the number of container lifts, the bigger the bonus.[17]Under the 2003-2008 contracts, the RIBS had become grossly inflated as a result of decreasing waste and increasing landfill tax. By way of illustration, a spreadsheet prepared by Matthew King, a Council officer, for budgetary purposes after the tenders had been received for the new contracts showed that for the three sites operated by Varney at Ware, Potters Bar and Cole Green, the annual RIBS bonuses received by Varney in 2007/2008 was £88,801, £59,042 and £92,641 as against the annual site attendance charge for those sites of £33,300, £33,658 and £48,000 respectively.[18]Accordingly, in the new 2008-2013 contracts, the Council was determined to reduce the amount of RIBS bonus available to site operators. In Appendix 13 to the new contracts, it was made clear that because of the significant reduction in actual throughput of waste in recent years, the theoretical site throughput would be subject to only a 1% compound growth factor. On the basis of these changes to the calculation of the RIBS, the Council projected the annual RIBS under the new contracts for the three sites then operated by Varney, at Ware Potters Bar and Cole Green, as £42,089.46, £49,072.31 and £42,589.65 respectively, a considerable reduction from the 2007/08 bonuses. Mr Varney appreciated that under the new contracts, the RIBS bonuses for site operators would be much reduced and this was one of the factors that influenced how he priced his bid.[19]The ITT required tenders to be submitted by 1 August 2008. Tenders from seven companies, including Varney, were received on that date. The tenders were then marked by the two Council officers involved in the tender and award processes, Michael Shaw and Mr King. Mr Shaw marked the Return Schedules other than in relation to staffing levels and price (Return Schedules 9 and 16 respectively) which were marked by Mr King. In the case of each of the Return Schedules except that relating to price, they were given equal weighting of 5 marks each, on the advice of Mrs Evelyn Poulton of the Council’s Special Procurement Group. In addition to the marking of those Return Schedules, Mr Shaw made a further assessment of the quality of the information received from each tenderer, for which up to 5 additional marks were given.[20]So far as staffing levels were concerned, that Return Schedule was marked somewhat differently from the others. For each site, the tenderer with the highest staffing levels was given one mark, with those with descending levels of staffing getting decreasing fractions of one, with the tenderer with the lowest staffing levels getting zero. The marks awarded were then added up to get an overall figure which was taken to be for all 19 sites (even where the tenderer had not bid for all the sites), divided by 19 and then multiplied by 5 to get an overall mark out of 5.[21]Mr King checked Mr Shaw’s marking and discussed it with him. Neither of them was sure in evidence whether any changes had been made following that discussion but it is clear that they were agreed on the marks awarded to each tenderer.[22]When the overall results were collated, Varney’s overall ranking on each site for which it tendered was fourth, fifth or sixth. Another tenderer, Fourways, put in the best scoring tender for each of the 18 sites for which it had bid. However, Fourways prices were significantly lower than the other prices received from other tenderers. So far as the other tenders are concerned, two of them (Edwards and DWS) quoted a site management charge which did not necessarily represent the actual cost of such matters as staff. It appears that they considered that the income they would make from other sources such as the sale of ferrous and non-ferrous metals and salvage as well as the RIBS payments (albeit at a reduced level under the new contracts) was such as could subsidise to an extent the cost of running the relevant HWRCs. In contrast, Mr Varney took a conservative approach and quoted prices which represented his actual cost of running the centres plus a margin for profit.[23]A debriefing meeting was held at County Hall on 15 September 2008 between Mr Varney and Mr Shaw and Mr King. Mr Varney recorded the meeting and there is a transcript, albeit that it appears incomplete and in places is difficult to follow. Mr Varney did not appear to be surprised that he had lost the tenders. Indeed, he said he had already sold his uniforms to Mr Brydon of Fourways, so it seems clear that he knew before the meeting that he had been unsuccessful. The transcript records Mr Varney as having said that he had thrown his tender in the bin twice and that “At the end of the day I don’t give a toss one way or the other”. Mr Varney is also recorded as saying:
“We’ve been blown out on price.”
Mr Shaw explained at that point that the tenders were evaluated by reference to all the Return Schedules, fourteen of which were to do with performance, not price. Mr Shaw and Mr King said to Mr Varney that they would answer any questions he had. The meeting ended amicably.[24]Following the meeting, the Council wrote to Mr Varney on 17 September 2008 informing him that the tender of 17 July 2008 had been unsuccessful. On 17 October 2008, Varney wrote to the Council asking for a copy of the Edwards tender for Ware, Cole Green and Potters Bar. The Council responded on 10 November 2008 that copies of the tender documents of other tenderers were within an exception under the Environmental Information Regulations 2004 in respect of the commercial interests of those other tenderers. In other words the Council declined to disclose the tenders on grounds of commercial sensitivity.[25]On 2 December 2008, Cartwright King, solicitors then acting for Varney, wrote to the Council asking for reasons why the tender was unsuccessful and an explanation of the Council’s procedures when considering the tenders. That was followed on 8 December 2008 by a much fuller letter from Varney’s current solicitors, DMH Stallard, seeking a detailed response from the Council. The first Claim Form was then issued on 12 December 2008.

The contentions of the parties

[26]There are three grounds of appeal: i) The Council failed to disclose the criteria, sub-criteria and weightings which would be applied when determining which of the tenders was the most economically advantageous. ii) The Council applied criteria, sub-criteria and weightings which were inconsistent with the information which it had disclosed. iii) The judge wrongly held that Varney had failed to bring its claim within the time limit imposed by regulation 47(7).[27]Varney’s “basic grievance” is that it had been led to believe by the ITT that “staffing levels proposed by tenderers would play a very significant part in the evaluation of tenders”. In consequence, Varney’s tender “proposed high levels of good quality staff for each site (with a consequent increase in price) yet, in the event, staffing levels were given very little significance by the Council when it came to marking tenders.” As a result, Varney had little chance of winning any tender, since it overpriced its bid.[28]At a more technical level, Varney submitted: i) Regulation 30 requires a contracting authority to disclose to tenderers in advance of tenders being submitted the criteria which will be used for evaluating tenders and the weightings to be accorded to those criteria (unless, which was not suggested in this case, it is “not possible” to provide weightings: reg. 30(5)). ii) The obligation of transparency in regulation 4(3) requires a contracting authority to disclose to tenderers in advance of tenders being submitted the sub-criteria which would be used for evaluating tenders and the weightings to be accorded to those sub-criteria. iii) Disclosure of criteria and sub-criteria does not consist merely of stating relevant matters in the ITT. Criteria and sub-criteria must actually be identified as such. iv) A corollary of the obligation to disclose criteria, sub-criteria and weightings is that a contracting authority must actually apply the criteria, sub-criteria and weightings which it has disclosed.[29]Varney submitted that the Council had failed to comply with any of these principles. In relation to the time limit issue, it submitted that time did not run until there had been a breach of the Regulations by the Council, and that Varney knew or ought to have known of that breach. It was not until Varney was informed by the Council of the reasons for the rejection of its tender that time began to run, and his proceedings were brought within the time limit.[30]The Council contends that the judge reached the right conclusions for the reasons he gave: i) The Return Schedules did not constitute award criteria but rather sub-criteria. The award criteria “were ‘customer satisfaction’ and ‘price’ and the Return Schedules were not separate principles or standards or tests but no more than (in the case of Return Schedules 1 to 15) sub-sets of those principles or standards or tests”. ii) The Council was entitled not to identify sub-criteria and disclose their weightings provided that the conditions set out in paragraph 32 of the judgment of the European Court of Justice in Case C-331/04, ATI EAC v ACTV Venezia [2005] ECR I-10109 were satisfied. iii) Those conditions were indeed satisfied in this case. In particular, the disclosure of sub-criteria and their weightings could have made no difference to the preparation of tenders. iv) The defects in the ITT alleged by Varney were evident when it was published, and it could then have brought proceedings against the Council, well before the date when it did in fact bring proceedings.

Discussion

[31]There are broadly two issues before the Court: i) Did the Council act in breach of the Regulations? ii) If so, did it bring the proceedings within the time stipulated in regulation 47(7). The second issue arises only if the first is decided in favour of Varney.[32]The Regulations implement into domestic law EU Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public services contracts. Accordingly, judgments of the Court of Justice of the European Union are authoritative on the interpretation and effect of the Regulations. The Regulations lay down general principles which authorities such as the Council must follow in tendering for contracts. In particular, Regulation 4(3) imposes an obligation on the Council to treat tenderers equally and in a non-discriminatory way and to act in a transparent way.[33]Transparency is achieved under the Regulations in two ways: first, in requiring the criteria for the awarding of a contract to be identified to tenderers, with the weighting attached to each criterion, so that those matters are known and applied equally to all tenderers; and secondly, in requiring a public authority to provide the information specified in regulation 32 to the tenderers as soon as possible after making the decision as to the successful tenderer or tenderers.[34]Mr Coppel’s primary submission was that the subject matters of the Return Schedules were criteria for the award of the contracts, and that the Council therefore had to identify them, or those that were criteria, as such, together with the weightings the Council proposed to attach to them, as required by regulation 30(3). In the circumstances referred to in regulation 30(5) it would be unnecessary to give weightings, but those circumstances did not apply in the present case. Even if the Return Schedules were sub-criteria, it was necessary for tenderers to be informed of the weightings attached to each of them. In this connection, he relied on the judgment in Letting International v Newham LBC [2008] EWHC 1583 (QB); [2008] LGR 908, in which Silber J cited and applied the definition of “criterion” in the Shorter Oxford English Dictionary as meaning "principle, standard, or test by which a thing is judged, assessed or identified". If that definition is appropriate, it would mean that regulation 30 requires every standard by which a bid is to be evaluated, no matter how minor or subsidiary, to be disclosed as such with its proposed weighting. That would seem to me to be impracticable, and I do not think it is what Community law requires.[35]The crucial judgment of the Court of Justice in this context is ATI EAC v ACTV Venezia, to which the judge referred. It was decided before the adoption of the current Directive, but it is not suggested that the principles it lays down are not equally applicable to it, and those principles have been applied to the present Directive: see Case C-226/09 Commission v Ireland, to which I refer below, and Case T-70/05 Evropaiki Dynamaki. The Directive in question in ATI required all the criteria on which a public authority was to base its award of a contract to be stated, where possible in descending order of importance.[36]The facts are important. On 6 April 2002 ACTV published in the Official Journal of the European Communities a notice concerning a public contract for passenger transport in three lots. The dispute in the main proceedings concerned Lot No 1 relating to the urban transport service for the town of Mestre for the period from 16 June 2002 to 31 December 2003. The tender notice stated, under the heading ‘Award Criteria’, that ACTV had decided to award the contract to the bidder submitting the economically most advantageous tender. The applicants applied to participate in the award procedure. By letter of 7 May 2002, ACTV invited them to submit a bid for Lot No 1. The contract documents attached to the letter laid down the following four award criteria on the basis of which the economically most advantageous tender was to be determined:
‘1. cost per kilometre for the services mentioned in Annexes A, B and C to the contract documents: – max. 60 points allocated on the basis of the ratio: … 2. cost per kilometre for services in addition to those mentioned in Annexes A, B and C to the contract documents: – max. 10 points allocated on the basis of the ratio: ... 3. organisational procedures and support structures used in carrying out the service, as they appear in the document referred to in paragraph 3(10)(6) of the terms and conditions: – max. 25 points allocated by ACTV at its absolute discretion. 4. possession of a certificate of conformity …: 5 points.’
[37]As regards the third and fourth criteria for the award of the contract, the contract documents provided that the tender papers must contain a descriptive account of the organisation and of the logistical and support structures to be used in the management of the services to be provided under the contract, and that account had to include at least the following information: – ‘depots and/or areas where buses can be parked, owned by or available to the undertaking, within the territory of the Provincia di Venezia …; – procedures for supervising the service supplied and number of employees supervising the service itself; – number of drivers on the route and kind of licence held; – number of places of business owned by or available to the undertaking (other than depots) within the territory of the Provincia di Venezia …; – number of employees engaged in organising drivers’ shifts’.[38]Subsequently, after expiry of the period prescribed for the submission of tenders and before the envelopes were opened, the jury deciding on the award of the contract weighted the 25 points available to be awarded for the third criterion by dividing them into five subheadings corresponding to each of the indications given in the report included in the tender submitted by the bidders. The number of points to be awarded for each of the subheadings was broken down as: eight, seven and six points for the first, second and third subheadings respectively and two points for each of the fourth and fifth subheadings.[39]On 30 May 2002, having rejected one of the tenders submitted, the jury examined those from the applicants and from ATI La Linea SpA-CSSA (‘La Linea’). The latter, with 86.53 points, was awarded the contract. The applicants obtained 83.5 points.[40]The applicants believed that La Linea had been awarded the contract solely as a result of the weighting ex post facto of the number of points liable to be awarded for the third criterion, and commenced proceedings for breach of the Directive. The Consiglio di Stato referred the following questions to the Court for a preliminary ruling:
“1. Is it lawful to interpret [Article 36 of Directive 92/50 and Article 34 of Directive 93/38] as a flexible rule allowing the contracting authority, where the award is to be made on the basis of the economically most advantageous tender, to fix the criteria in a general way in the tender notice or the contract documents, leaving it to the jury to specify or supplement those criteria, if need be, provided always that such specifying or supplementing is carried out before the packets containing the tenders have been opened and that such action introduces nothing new in relation to the criteria fixed in the tender notice or, on the contrary, must that provision be interpreted as a rigid rule requiring the contracting authority to determine, analytically, the criteria for the award of the contract in the tender notice or the contract documents, before the prequalification stage or the invitation to tender, and as meaning that the jury may not subsequently in any way do anything to specify or supplement those criteria or to create subheadings or sub-marking, since for reasons of transparency every piece of information concerning the criteria for the award must appear in the notice or contract documents? … 3. In any case, is it lawful, in the light of that provision, to give the jury which is to assess the tenders, regardless of the manner in which criteria have been formulated in the tender notice, in a procedure for an award on the basis of the economically most advantageous tender, the power, but only in respect of the complexity of the matters to be assessed, to restrict its own actions in a general way, by specifying the parameters for the application of the criteria previously determined in the tender notice, and may such power held by the jury be exercised by creating subheadings, sub-points, or simply by setting more specific criteria for the application of the criteria laid down generally in the notice or the contract documents, before of course the envelopes have been opened?”
[41]The Court held:
“19. … the questions referred should be understood to relate essentially to the question whether Article 36 of Directive 92/50 and Article 34 of Directive 93/38 must be interpreted as meaning that Community law precludes a jury from attaching specific weight to the subheadings of an award criterion which are defined in advance, by dividing among those subheadings the points awarded for that criterion by the contracting authority when the contract documents or the contract notice were prepared. … 21 Next, it must be observed that the award criteria defined by a contracting authority must be linked to the subject-matter of the contract, may not confer an unrestricted freedom of choice on the authority, must be expressly mentioned in the contract documents or the tender notice, and must comply with the fundamental principles of equal treatment, non-discrimination and transparency (see Concordia Bus, cited above, paragraph 64). 22 In the present case, it must be observed, in particular, that the duty to observe the principle of equal treatment lies at the very heart of the public procurement directives (see Concordia Bus Finland, paragraph 81) and that tenderers must be in a position of equality both when they formulate their tenders and when those tenders are being assessed (see Case C-19/00 SIAC Construction [2001] ECR I-7725, paragraph 34). 23 It must also be observed that, in accordance with Article 36 of Directive 92/50 and Article 34 of Directive 93/38, all such criteria must be expressly mentioned in the contract documents or the tender notice, where possible in descending order of importance, so that operators are in a position to be aware of their existence and scope (see Concordia Bus Finland, paragraph 62). 24 Similarly, in order to ensure respect for the principles of equal treatment and transparency, it is important that potential tenderers are aware of all the features to be taken into account by the contracting authority in identifying the economically most advantageous offer, and, if possible, their relative importance, when they prepare their tenders (see, to that effect, Case C-87/94 Commission v Belgium [1996] ECR I-2043, paragraph 88, and Case C-470/99 Universale-Bau and Others [2002] ECR I-11617, paragraph 98). 25 Finally, it is for the national court to assess, in the light of these rules and principles, whether, in the case in the main proceedings, the jury infringed Community law by applying a weighting to the various subheadings of the third criterion for the award of the contract. 26 In that regard, it must be determined first whether, in the light of all the relevant facts of the case in the main proceedings, the decision applying such weighting altered the criteria for the award of the contract set out in the contract documents or the contract notice. 27 If it did the decision would be contrary to Community law. 28 Second, it must be determined whether the decision contains elements which, if they had been known at the time the tenders were prepared, could have affected that preparation. 29 If it did the decision would be contrary to Community law. 30 Third, it must be determined whether the jury adopted the decision to apply weighting on the basis of matters likely to give rise to discrimination against one of the tenderers. 31 If it did the decision would be contrary to Community law 32 Accordingly, the answer to the questions referred must be that Article 36 of Directive 92/50 and Article 34 of Directive 93/38 must be interpreted as meaning that Community law does not preclude a jury from attaching specific weight to the subheadings of an award criterion which are defined in advance, by dividing among those headings the points awarded for that criterion by the contracting authority when the contract documents or the contract notice were prepared, provided that that decision: – does not alter the criteria for the award of the contract set out in the contract documents or the contract notice; – does not contain elements which, if they had been known at the time the tenders were prepared, could have affected that preparation; – was not adopted on the basis of matters likely to give rise to discrimination against one of the tenderers.”
[42]In the present case, the judge found as a fact that each of these three conditions was satisfied. Provided he was correct in his finding that the Return Schedules constituted sub-criteria (or, to use the language of ATI, “subheadings of an award criterion”), rather than criteria, it is indistinguishable from ATI.[43]The judgment of the Court in ATI must be compared with its judgment in Case C-532/06Emm. G. Lianakis AE and others v Dimos Alexandroupolis and others [2008] ECR I-251. In that case, the public authority identified the criteria as such in the contract notice and listed them in order of priority. During the evaluation procedure it set weightings for each of the three award criteria and established a points system that did not reflect anything in the contract notice. For example:
“14. In addition, [the public authority] stipulated that experience (first award criterion) should be evaluated by reference to the value of completed projects. Thus, for experience on projects worth up to EUR 500 000, a tenderer would be awarded 0 points; between EUR 500 000 and EUR 1 000 000, 6 points; between EUR 1 000 000 and EUR 1 500 000, 12 points; and so on up to a maximum score of 60 points for experience on projects worth over EUR 12 000 000.”
[44]The applicants’ contentions were summarised in paragraph 19 of the judgment:
“The Lianakis and Planitiki consortia took the view that the Loukatos consortium could only have been awarded the project as a result of the Project Award Committee’s subsequent stipulation of the weighting factors and sub-criteria in respect of the award criteria referred to in the contract notice, and challenged the decision taken by the Municipal Council of Alexandroupolis, initially before the Council itself and subsequently before the Simvoulio tis Epikratias (Greek Council of State; ‘Simvoulio tis Epikratias’) on the basis, in particular, of allegations of infringement of Article 36(2) of Directive 92/50.”
[45]The Court referred to ATI and distinguished it:
“36. According to the case-law, Article 36(2), read in the light of the principle of equal treatment of economic operators set out in Article 3(2) of Directive 92/50 and of the ensuing obligation of transparency, requires that potential tenderers should be aware of all the elements to be taken into account by the contracting authority in identifying the economically most advantageous offer, and their relative importance, when they prepare their tenders … 37 Potential tenderers must be in a position to ascertain the existence and scope of those elements when preparing their tenders … 38 Therefore, a contracting authority cannot apply weighting rules or sub-criteria in respect of the award criteria which it has not previously brought to the tenderers’ attention … 39 That interpretation is supported by the purpose of Directive 92/50 which aims to eliminate barriers to the freedom to provide services and therefore to protect the interests of economic operators established in a Member State who wish to offer services to contracting authorities established in another Member State … 40 To that end, tenderers must be placed on an equal footing throughout the procedure, which means that the criteria and conditions governing each contract must be adequately publicised by the contracting authorities (see, to that effect, in relation to public works contracts, Beentjes, paragraph 21, and SIAC Construction, paragraphs 32 and 34; also, in relation to public service contracts, ATI EAC and Others, paragraph 22). 41 Contrary to the doubts expressed by the referring court, those findings do not conflict with the interpretation by the Court of Justice of Article 36(2) of Directive 92/50 in ATI EAC and Others. 42 In the case that gave rise to that judgment, the award criteria and their weighting factors, together with the sub-criteria of those award criteria had in fact been established beforehand and published in the contract documents. The contracting authority concerned had merely stipulated subsequently, shortly before the opening of the envelopes, the weighting factors to be applied to the sub-criteria. 43 In that judgment, the Court held that Article 36(2) of Directive 92/50 does not preclude proceeding in that way, provided that three very specific conditions apply, namely that the decision to do so: – does not alter the criteria for the award of the contract set out in the contract documents; – does not contain elements which, if they had been known at the time the tenders were prepared, could have affected that preparation; and – was not adopted on the basis of matters likely to give rise to discrimination against one of the tenderers (see, to that effect, ATI EAC and Others, paragraph 32). 44 It must be noted that in the case in the main proceedings, by contrast, the Project Award Committee referred only to the award criteria themselves in the contract notice, and later, after the submission of tenders and the opening of applications expressing interest, stipulated both the weighting factors and the sub-criteria to be applied to those award criteria. Clearly that does not comply with the requirement laid down in Article 36(2) of Directive 92/50 to publicise such criteria, read in the light of the principle of equal treatment of economic operators and the obligation of transparency. 45 Having regard to the foregoing, the answer to the question referred must therefore be that, read in the light of the principle of equal treatment of economic operators and the ensuing obligation of transparency, Article 36(2) of Directive 92/50 precludes the contracting authority in a tendering procedure from stipulating at a later date the weighting factors and sub-criteria to be applied to the award criteria referred to in the contract documents or contract notice.”
[46]The judgment in Lianakis confirms that not all standards applied to decide on the award of a relevant contract are necessarily criteria: they may be sub-criteria. Paragraph 45 of the judgment does not require the weightings of sub-criteria to be set out in the contract notice, provided the conditions laid down in ATI are met.[47]The application of the principles laid down in ATI was reaffirmed in relation to a regulation with materially the same provisions as Directive 2004/18 in Case T‑70/05, Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE v European Maritime Safety Agency (EMSA), in which judgment was given on 2 March 2010. The relevant facts appear from the extracts of the judgment. “148 In accordance with settled case-law, it is, none the less, possible for a contracting authority, after expiry of the period for submission of tenders, to determine weighting coefficients for sub-criteria of award criteria previously established, on three conditions, namely that that ex post determination, firstly, does not alter the criteria for the award of the contract set out in the contract documents or the contract notice; secondly, does not contain elements which, if they had been known at the time the tenders were prepared, could have affected that preparation; and, thirdly, was not adopted on the basis of matters likely to give rise to discrimination against one of the tenderers (see, to that effect and by analogy, ATI EAC e Viaggi di Maio and Others, paragraph 146 above, paragraph 32, and Lianakis and Others, paragraph 131 above, paragraphs 42 and 43). … 151 It is apparent from the report to the authorising office of 19 November 2004 that the evaluation committee had agreed to break down the first criterion concerning the proposed methodology for the project (which was to include detailed proposals of how the project would be carried out, and milestones and deliverables, as defined in point 3 of the tender specifications), into two sub-criteria: ‘repartition of tasks, manpower offered of quality and man-days (roadmap) – 20%; deliverables – 20%’. 152 Contrary to what the applicant claims, the evaluation committee did not subdivide that award criterion into sub-criteria which had not previously been brought to the tenderers’ attention. Those sub-criteria correspond, essentially, to the description of the first criterion, concerning methodology, as specified in point 13.1 of the tender specifications, read in the light of point 3 thereof ... Accordingly, the evaluation committee merely weighted the 40 points available for the first award criterion by dividing them fairly between those sub-criteria. 153 In the light of those considerations, it must be determined whether, in providing for such weighting, the evaluation committee infringed the Financial Regulation and its implementing rules. 154 It is apparent from the case-law cited in paragraph 148 above that a contracting authority cannot infringe the Financial Regulation or the implementing rules when it divides among the subheadings of an award criterion which are defined in advance the number of points allotted to that criterion when the tender specifications were prepared, provided that that division does not alter the award criteria defined in the tender specifications or the contract notice, does not contain elements which, if they had been known at the time the tenders were prepared, could have affected that preparation, and was not adopted on the basis of matters likely to give rise to discrimination against one of the tenderers. 155 In the present case, the applicant, by merely referring generically to the fact that the contracting authority subdivided a criterion into two sub-criteria, has not shown that the decision of the contracting authority to make such a division led to an alteration of the contract award criteria previously defined in the tender documents, or that it contained elements which could have affected the preparation of the tenders, or that it gave rise to discrimination against the applicant or one of the tenderers. … 158 In the light of all the foregoing, the conclusion must be that the second plea in law, as regards tendering procedure C-1/01/04, must be rejected in its entirety.”[48]It follows from these authorities that the definition of criterion adopted and applied by Silber J in Letting International is too general and too wide. It is necessary to decide whether the standards applied by the contracting authority were criteria or sub-criteria; and if the latter, whether they were defined in advance, if so whether the requirements of ATI are satisfied.[49]In deciding whether a contracting authority has applied a criterion or a sub-criterion, and whether it should have disclosed the weightings it applied when awarding a contract, it may be relevant to consider whether the facts disclose a breach of the requirements of equality and transparency. In this connection, it is noteworthy that in Case C-226/09 European Commission v Ireland, Ireland was held not to have infringed the principles of equality and transparency where it had not informed tenderers of the relative weighting of the criteria it applied in awarding a contract:
“42 It is true that, according to the Court’s case-law relating to public contracts awarded in accordance with all the provisions of the various public procurement directives which preceded the adoption of the Directive, the purpose of the requirement to inform tenderers in advance of the award criteria and, where possible, of their relative weighting, is to ensure that the principles of equal treatment and transparency are complied with (see, inter alia, Case C-470/99 Universale-Bau and Others [2002] ECR I-11617, paragraph 98, and Case C-331/04 ATI EAC and Viaggi di Maio and Others [2005] ECR I-10109, paragraphs 22 to 24). 43 However, while the requirement to state the relative weighting for each of the award criteria at the stage of publication of the contract notice, as now provided for under Article 53(2) of the Directive, meets the requirement of ensuring compliance with the principle of equal treatment and the consequent obligation of transparency, it cannot legitimately be argued that the scope of that principle and that obligation extends, in the absence of a specific provision to that effect in the Directive, to requiring that, in the context of contracts not subject to a provision such as Article 53 of the Directive, the relative weighting of criteria used by the contracting authority is to be determined in advance and notified to potential tenderers when they are invited to submit their bids. Indeed, as the Court indicated by the use of the phrase ‘where possible’ in the case-law referred to in the paragraph 42 above, the reference to the weighting of the award criteria in the case of a contract that is not subject to a provision such as Article 53(2) of the Directive does not constitute an obligation for the contracting authority. 44 It follows that Ireland, which had granted potential tenderers access to appropriate information concerning the contract at issue prior to the closing date for the submission of tenders, did not infringe the principle of equal treatment or the consequent obligation of transparency by attributing weightings to the award criteria without granting the tenderers access to those weightings before the closing date for the submission of tenders. …. 48 Moreover, the relative weighting of the award criteria communicated to the members of the evaluation committee in the form of a matrix would not have provided potential tenderers, had they been aware of that weighting at the time the bids were prepared, with information which could have had a significant effect on that preparation and did not constitute an alteration of those criteria (see, to that effect, ATI EAC and Viaggi di Maio and Others, paragraph 32).”
[50]In these circumstances, I see no reason to interpret the Directive and Regulation 30 more widely than is required to ensure that the basic principles, of equality (and non-discrimination) and transparency, are not infringed.[51]With these authorities and principles in mind, I turn to consider the judge’s basic finding, namely that the Return Schedules related to sub-criteria rather than criteria. In the present case, the criteria for the award of the contract were identified by the Council in the contract notice as price and customer satisfaction. To require such matters such as the Return Schedules and their weightings, to be identified at such an early stage would be a significant imposition on contracting authorities. The matters referred to in the Return Schedules were relevant to the criteria identified in the contract notice. They were identified in advance, in the ITT: Mr Varney knew that the information sought by the Schedules was to be used in awarding the contracts.

The judge said:

“87. In my judgment, when properly analysed the Return Schedules are not separate award criteria. Rather, as I have found above, Return Schedules 1 to 15 are dealing with different aspects of customer satisfaction, one of the stated award criteria and therefore are sub-criteria or a sub-set of that award criterion. Return Schedule 16 deals with rates i.e. price, the other stated award criterion. Accordingly I do not consider that to be a different or new sub-criterion, let alone a separate award criterion. Return Schedule 17 is merely a summary of the information provided by the tenderer and so nothing to do with award criteria.”
[52]In my judgment, the judge correctly held that they were sub-criteria, and that therefore there was no absolute requirement that their weightings be specified in the ITT. There was no breach of the principles of equality and transparency. Every tenderer was given the same information. It was obvious to Mr Varney that the information required by the Return Schedules would be used to decide on the award of the contracts. The judge found that Varney’s tender was unaffected by the fact that the Return Schedules were not identified as criteria or sub-criteria and he did not know the weightings to be attributed to them. Specifically in relation to staffing levels, which was the subject of his major complaint, he accepted that the staffing levels he put in his tender were unaffected by how the tenders were marked. There was no evidence that any other tenderer’s bid had been affected by the fact that the Return Schedules were not identified expressly as sub-criteria and their weightings not identified in the contract documents.[53]In paragraph 102 of his judgment,

the judge said:

“… in reality it was perfectly obvious that the award criteria were going to be marked by reference to the information provided in response to the Return Schedules and if any of the tenderers had wanted clarification of that or of what marks would be attached to each Return Schedule, they would surely have asked. Accordingly I am satisfied that this is a case where, within the ATI principle, there was no requirement to disclose in advance the sub-criteria or the weighting attached to each of them, because such disclosure could not have affected the preparation of any of the tenders. In the circumstances, the Council was not in breach of the obligation of transparency in that regard.”
These are findings of fact that have not been, and could not be, challenged.[54]It follows that I would reject Varney’s case on the first issue. The Council did not act in breach of regulation 30. If I had reached the contrary conclusion, I should have had great difficulty in seeing how, on the facts found by the judge, that breach could have led to any loss on the part of Varney, but that issue was not before the judge and is not before us. Lastly, my conclusion on the question of breach, if my Lords agree with it, renders it unnecessary to address the second issue, namely whether Varney issued proceedings within the applicable limitation period.[55]I would dismiss the appeal.[56]I agree.[57]I also agree.

Cited in 3 later judgments