“All unit prices quoted must not be greater than your prices from the CCSL Occupational Health Services Framework, RM 6182, lot 1 fully managed service”
“(i) For OH58 (Occupational Health Physician – face to face offsite), Optima had bid£105 whereas its Framework Maximum Price for this service line was£40 . Optima states that in the Revised Pricing Submission, DWP changed the column headed “Check” to “Face to Face” without identifying that as a change. The volume for this line item was “0”. (ii) For OH229 (Occupational Health Advisory – telephone/virtual), Optima had bid£165 whereas its Framework Maximum Price for this service line was£105 . Optima states that in the Revised Pricing Schedule, DWP changed this cell to a telephone price without identifying that amendment. The volume for this line item was 10. (iii) For OH230 (Specialist Advisor – telephone/virtual) Optima had bid£560 whereas its Framework Maximum Price for this service line was£208.50 . Optima states that in the Revised Pricing Schedule, DWP changed this cell to a telephone price without identifying that amendment. The volume for this line item was 0.”
“1. Did the tender documentation clearly and transparently set out the consequence of exceeding the Framework Pricing Schedule. In particular: a. Would the RWIND bidder have understood the statement: “The maximum contract value is governed by the CCS Framework Occupational Health, Employee Assistance Programmes and Eye Care Services RM6182 Lot 1, any bids for any service line submitted to the Framework by invited bidders in excess of this will be discounted” to mean that its bid would be excluded if it included a service line in excess of Maximum Framework Prices? b. Would the RWIND bidder have otherwise understood that submitting a bid with a service line in excess of Maximum Framework Prices would render its bid non-compliant and therefore liable to disqualification? 2. If the tender documents were clear and DWP therefore had a discretion, did they act unlawfully by excluding Optima rather than taking alternative action, such as discounting the prices or seeking clarification? In particular: a. Did DWP consider whether to exercise discretion not to exclude Optima’s bid? b. If the answer to (a) is “yes”, did DWP nevertheless fail to take into account relevant considerations? c. Would discounting prices have been in breach of the principles of proportionality, equal treatment, and transparency? d. Would seeking clarification from Optima have been in breach of the principles of proportionality, equal treatment and transparency? e. Would issuing clarification and permitting resubmission of tenders have been in breach of the principles of proportionality, equal treatment and transparency?”
“2.2 The contract will be for 3 years with an option to extend for a further 1 year and will commence in May 2022. The maximum contract value is governed by the CCS Framework Occupational Health, Employee Assistance Programmes and Eye Care Services RM6182 Lot 1, any bids for any service line submitted to the Framework by invited bidders in excess of this will be discounted.”
“3.2.3. We recognise that subcontracting can change. You must tell us about any changes to the proposed subcontractors as soon as you know. If you do not, you may be excluded from this competition.” (b) Paragraph 6.9: “6.9.1 We reserve the right to: • Waive or change the requirements of this Bid Pack from time to time without notice • Verify information, seek clarification or require evidence or further information about your bid • Withdraw this Bid Pack at any time, to re-invite bids on the same or alternative basis • Choose not to award any contract or Lot as a result of the competition • Make any changes to that timetable, structure or content of the competition 6.9.2 Exclude you if: • You submit a non-compliant bid • Your bid contains false or misleading information • You fail to tell us of any change in the contracting arrangements between bid submission and award • The changes in the contracting arrangements would also result in a breach of procurement law • For any reason provided in this Bid Pack • For any reason set out in thePublic Contracts Regulations 2015 ” (c) Paragraph 6.10.1: “6.10.1 If a serious misrepresentation by you induces the Contracting Authority to enter into a contract with you, you may be: • Excluded from bidding for contracts for three years, under regulation 57(8)(h)(i) of the PCR 2015 • Sued by the Contracting Authority for damages, the Contracting Authority may rescind the contract under theMisrepresentation Act 1967 ”
“Social Value - part 1 WEIGHTING 5% No costings should be included in responses to this Questionnaire as this will result in disqualification. Anything submitted in excess of the Word Count will not be considered.”
“In context, it makes no sense that there would be a discount (meaning a reduction) when it would not have been possible to have divined what the reduction ought to have been between 0 and the amount of the maximum sum of the service line submitted.”
“56. Secondly, a waiver of terms which are stated as applying without exception is a departure from the terms of the procurement process and is therefore an exceptional course. A waiver of such terms carries the very risks of unequal treatment, discrimination and a lack of transparency which the contracting authority is required to avoid. It is to be noted that the Commission's action under review in TidelandSignal involved a failure to exercise an express power under the invitation to tender, not a failure to waive express terms.”
“889. Finally, I consider that the principle of proportionality, exceptional as its application must be, will more usually apply to circumstances entirely or substantially outside the control of the tenderer in question, preventing compliance with a rule of the competition – the power failure in Leadbitter is a good example. Matters within the control of the tenderer, particularly those that go to what must have been a tenderer’s decision as to substantive content of the tender submission, will rarely in my judgment be sufficiently exceptional to justify application of the principle to excuse non-compliance. Tideland can be explained as not going to substantive content. 890. It is submitted by the NDA in its supplementary closing submissions that excluding a tenderer for failures that are “venal or trivial” or for failures that had “no real impact” would be disproportionate. This may be using different words to present Professor Arrowsmith’s views. In my judgment the correct approach is to characterise the failure, firstly, as one of either form or content. If form, then there is a second step. If the failure relates to content, in my judgment, the second step would not fall to be considered at all. That second step would be then to consider the scope and extent of the failure. If merely trivial, then the authority could potentially waive the failure, as long as doing so would not breach the obligations of transparency and equal treatment. Further, such waiver should only be permissible in the most exceptional of cases. It is also important to differentiate between cases where the rules of the competition entitle the authority to waive non-compliance, and those that do not. Those authorities engaged in competitions where the rules specifically do not permit this will rarely be entitled to act contrary to those rules, although of course the rules will differ in case to case.”
“The essence of a competition by way of tender such as that in question is to provide all competitors with an equal opportunity to make their case. It is obviously essential to that end that all competitors should have to work to the same deadline, and it will obviously be perceived to be, and in fact be, unfair for the Commission to then change the rules to allow those who carelessly failed to meet the deadline to make late bids.”
“Furthermore, it is settled caselaw that the principle of equal treatment requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified.”
“56. That is the position, inter alia, where a tender has been drafted in ambiguous terms and the circumstances of the case, of which the Commission is aware, suggest that the ambiguity probably has a simple explanation and is capable of being easily resolved. In principle, it would be contrary to the requirements of sound administration for the Commission to reject the tender in such circumstances without exercising its power to seek clarification. It would be contrary to the principle of equal treatment to accept that, in such circumstances, the Commission enjoys an unfettered discretion (see, to that effect, Case T‑211/02 Tideland Signal v Commission [2002] ECR II‑3781, paragraphs 37 and 38). 57 In addition, the principle of proportionality requires that measures adopted by the institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued, it being understood that, where there is a choice between several appropriate measures, recourse must be had to the least onerous and that the disadvantages caused must not be disproportionate to the aims pursued (Case C‑157/96 National Farmers’ Union and Others [1998] ECR I‑2211, paragraph 60). That principle requires that, when the contracting authority is faced with an ambiguous tender and a request for clarification of the terms of the tender would be capable of ensuring legal certainty in the same way as the immediate rejection of that tender, the contracting authority must seek clarification from the tenderer concerned rather than opt purely and simply to reject the tender (see, to that effect, Tideland Signal v Commission, paragraph 56 above, paragraph 43). 58 However, it is also essential, in the interests of legal certainty, that the Commission be able to ascertain precisely what a tender submitted in the course of a procurement procedure means and, in particular, to determine whether the tender complies with the conditions set out in the contract documents. Thus, where a tender is ambiguous and the Commission is not in a position to establish, quickly and efficiently, what it actually means, that institution has no choice but to reject the tender (Tideland Signal v Commission, paragraph 56 above, paragraph 34). 59 Lastly, it is ultimately for the Court to determine whether a tenderer’s replies to requests from the contracting authority for clarification can be regarded as explanations of the terms of the tender or whether those replies go beyond clarification and modify the substantive terms of the tender in relation to the conditions laid down in the contract documents (see to that effect, Esedra v Commission, paragraph 49 above, paragraph 52).”
“37. To enable the contracting authority to require a tenderer whose tender it regards as imprecise or as failing to meet the technical requirements of the tender specifications to provide clarification in that regard would be to run the risk of making the contracting authority appear to have negotiated with the tenderer on a confidential basis, in the event that that tenderer was finally successful, to the detriment of the other tenderers and in breach of the principle of equal treatment. 38. In any event, it does not follow from art.2 or from any other provision of Directive 2004/18, or from the principle of equal treatment or the obligation of transparency, that, in such a situation, the contracting authority is obliged to contact the tenderers concerned. Those tenderers cannot, moreover, complain that there is no such obligation on the contracting authority since the lack of clarity of their tender is attributable solely to their failure to exercise due diligence in the drafting of their tender, to which they, like other tenderers, are subject. 39. Article 2 of Directive 2004/18 does not therefore preclude the absence, in national legislation, of a provision which would oblige the contracting authority to request tenderers, in a restricted public procurement procedure, to clarify their tenders in the light of the technical requirements of the tender specifications before rejecting them because they are imprecise or do not meet those requirements. 40. Nonetheless, art.2 of that directive does not preclude, in particular, the correction or amplification of details of a tender where appropriate, on an exceptional basis, particularly when it is clear that they require mere clarification, or to correct obvious material errors, provided that such amendment does not in reality lead to the submission of a new tender. Nor does that article preclude a provision of national legislation such as art.42(2) of Law 25/2006, according to which, in essence, the contracting authority may ask tenderers in writing to clarify their tender without, however, requesting or accepting any amendment to the tender.”
“30. In my judgment, this is the answer to the claimant’s case that there was duty on the defendant to assist them make good the defects in their application. Viewed entirely from the point of view of a public law duty to act fairly, it may well be that the exercise of a discretion to grant a benefit should be based on all matters that could or should be known to the authority, and that fairness might well include a reasonable opportunity to correct obvious errors without changing the fundamental nature of the bid submitted. It is after all in the public interest that a well-qualified and experienced provider of legal services in the field of immigration should be permitted to continue in business. However, any such duty is severely circumscribed where there is a competitive tender and an over-riding duty to treat all tenderers equally… Any general duty to give an applicant an opportunity to correct errors in the absence of fault by the defendant, yields to the duty to apply the rules of the competition consistently and fairly between all applicants, and not afford an individual applicant an opportunity to amend the bid and improve its prospects of success in the competition after the submission date had passed.”
“31. In my judgment, the critical factor which gives rise, or may give rise, to a duty to seek clarification is where the tender as it stands cannot be properly considered because it is ambiguous or incomplete or contains an obvious clerical error rendering suspect that part of the bid. If the inability to proceed with a bid, which may be an advantageous addition to the competitive process, can be resolved easily and quickly it should be done, assuming there is no change to the bid or risk of that happening. If there is an obvious error or ambiguity or gap, clarifying it does not change the bid because, objectively the bid never positively said otherwise.”
“32…it is only in those cases where there is an obstacle, as perceived by the awarding authority, to considering the bid. If the awarding authority perceives no such obstacle it is entitled to consider it in the usual way. If, on occasion, this may work against a tenderer which has not taken care with its tender, that is unfortunate but it is a function of the overriding need to have properly prepared, timely and accurate tenders as a matter of good administration… 35 Ambiguity, or inability otherwise to proceed with the tender, works as the essential threshold for interference because (a) resolving the problem does not necessarily entail a positive change in the bid and (b) it constitutes a sensible and workable limit to the obligation of the awarding authority to investigate beneath the surface of a bid. And even here, not every case of ambiguity or inability to proceed will require relief to be granted by the awarding authority: see the Tideland principle referred to in paragraph 27 above. Properly considered, the cases referred to above favour the LSC not Harrow. The broad principle contended for by Mr Clarke simply does not exist.”
“It was also a test that was unworkable in practice: how could a contracting authority sensibly decide whether an answer to a clarification question ‘fundamentally altered the nature of the bid’ once it had received the answer, let alone when it was asking itself whether or not to ask the clarification question in the first place?”
“Exactly same outcome as me, the two cut and paste errors I can understand (though disappointing) the OH58 is a genuine overprice from a compliance point of view.” b) DWP’s internal document dated3 May 2023 . It says: “Further to the OHEAP CAB pre-brief and the specific question raised around the Departments right to exclude non-compliant bidders, the following is evident: Whilst the ITT documentation includes the specific right to exclude non-compliant bids at paragraph 6.9.2 of the document entitled “About the Procurement”, stating “We reserve the right to exclude you if you submit a non-compliant bid” however, the ITT documentation is not explicit in what circumstances this remedy is used. With regards to exceeding the framework pricing specifically there is an obligation in all procurement documentation and the framework itself not to exceed the framework price caps which are the maximum allowable costs under any Call-Off competition, however the ITT documentation uses the word “discounted” as opposed to “excluded” or “disqualified”, stating “any bids for any service line submitted to the Framework by invited bidders in excess of this will be discounted” giving rise to some ambiguity which may be open to interpretation. PRIVILIGED The above approach, i.e. excluding Optima and [ABC], has to be viewed commercially in comparison to the risks associated with the potential other 3 options available to the Department. • Clarify pricing with bidders and request resubmissions of those prices above framework caps – whilst this would have been an option had all bidders been non-compliant PRIVILIGED PRIVILIGED • Discounting the prices that are over framework price caps by not taking them into account – this would essentially remove line items from the evaluation that have volumes and would skew the entire financial evaluation, • Discounting the prices that are over the framework price caps back to the framework price caps – there is no process identified for this in any documentation PRIVILIGED PRIVILIGED • Abandon the procurement and re-run – PRIVILIGED PRIVILIGED PRIVILIGED PRIVILIGED”
“Q. Thank you. Mr. McPherson, just before we leave this, do you think it is fair to exclude a bidder for making a mistake of this sort when you make the same category of mistake despite quadruple checking? A. I don't necessarily believe it is fair. However, I do not believe we really had a choice from a commercial perspective. Q. When you say "from a commercial perspective", what do you mean? A. In terms of we were mandated to -- not mandated but we felt we were left in no position but to exclude non-compliant bids because we had a compliant bid and to have gone back out and clarified any further on the non-compliances would have meant that the compliant bidder would have been treated unfairly or unequally.”
“It would simply not be a fair and transparent process to allow one bidder to correct pricing errors in its bid in order to make it compliant and avoid disqualification when another bidder has correctly complied with the rules of the competition. Other than allowing your client to change its bid or evaluating the bid based on a price other than what was submitted, both of which would be unacceptable under a regulated procurement process, we do not see what proportionate alternative your client believes should have been followed. The procurement documents set out very clearly that pricing above the framework prices was not permitted and there was no discretion around disqualification if that requirement was breached. There is also a separate right to disqualify non-compliant bids under clause 6.9.2.” (Emphasis supplied)
“192. It follows that whilst it appears to have been a mistake to have bid above the maximum, there was no obvious mistake where the intended price was not within the knowledge of the Defendants. Nor was it a mistake which could be easily resolved by reference to documents within the tender itself or documents within the possession of the Defendants. The mistake could not be resolved by an assumption that the maximum line sum had been intended, when there was no basis to infer that this was the case. It therefore followed that any question would have to be one which inquired of the actual intended sum. On the authorities, that would be objectionable because it opened up a change of bid or at least the opportunity for a change of bid. That infringed the principles of equality of treatment and of transparency or gave rise to a serious risk of infringing these principles. 193. Ms Sloane KC submitted in the alternative to there being an obvious mistake that there was an ambiguity because at the same time Optima was certifying that it was complying with the requirements, but that it was providing prices which were not in accordance with the requirements. In my judgment, that does not lead to an ambiguity. It leads to a conclusion that Optima failed to provide a compliant bid and to make an accurate statement that it was providing a compliant bid. If, contrary to the foregoing, there was an ambiguity, the same objections exist about seeking to find out what was intended as set out in the last two sentences of paragraph 191 above.”
“216. As noted above and in the citations of decisions of Coulson J as he then was in Woods Building Services v Milton Keynes Council and in BY Development Ltd and others v Covent Garden Market Authority, the court’s function is not substituting its own view for the awarding authority or undertaking the tender evaluation again. It is considering whether an error has clearly been made. In my judgment, the Defendants did not act irrationally or arbitrarily or unreasonably or disproportionately in rejecting the bid of Optima. DWP was entitled to reach the views which it did. In particular, it was entitled to reach the following views, namely: (i) The tender was clear and transparent for the reasons set out above. (ii) There was a danger of infringement of equality of treatment to have allowed Optima to change its bid in circumstances where PAM had made a compliant bid. (iii) This was not a case where it was obvious what the intended bid of Optima was. In particular, it was not obvious that the maximum line price was intended, and it could have been lower. (iv) In particular, it was not obvious that it would be a quick and easily verifiable process to adopt what the true intention of Optima had been as regards the non-compliant parts of its bids. (v) There was a danger that allowing Optima to change from a non-compliant bid to a compliant bid was in breach of the requirement that a party should not be allowed to change its bid or to act in a manner which made it likely that it would or might change its bid. (vi) If a change could be allowed in respect of Optima, then equality of treatment would have required that the other non-compliant bidder or bidders be allowed also to reconsider their bids in the same manner and/or that PAM be allowed to reconsider their bid in the interests of equality of treatment. (vii) This would have added to the likelihood that this would be interpreted as a change in the bids or acting in a manner which made it likely that they would or might change their bids. This would exacerbate the concerns about the need for equality of treatment.”