“-Telephone references were obtained in respect of both companies and the results were very similar in that they: -Both had consistently good performance and were responsive in dealing with issues -In general the contract management was not as formal as we are proposing, as the contracts were smaller, however the systems were effective -There was therefore no reason to change the scores for either company.”
“… 4.1 In respect of the contract award for Wales and Cheshire IW [i.e. Mr. Wallace] informed the Board that the evaluation scores were close between [the Interested Party] and [the Claimants]. References had been sought but were inconclusive and had not affected the evaluation score. 4.2 LP [Mrs. Pyne] advised the Board that, unless there was any further relevant information to evaluate either company to the published criteria, the company with the highest score should be awarded the contract. 4.3 HM [Mr. Matthews] informed the Board that the Region was comfortable with the decision reached by the evaluation panel and would accept the contract being awarded to [the Interested Party].”
“3. In this model, the Project Board has overall responsibility for the procurement exercise, with membership defined accordingly. They will agree the procedures to be completed and the evaluation criteria for both pre-qualification and tenders. They will not be expected to commit significant time to carry out detailed evaluation and attend presentations, instead they will take the decisions (based on reports), regarding the companies to be invited to tender and on contract award. They would be expected to attend three meetings, and comment on/ approve a number of documents outside thjese meetings. 4. The tender evaluation team carries out the direct evaluation activities. Team members may be from different sections of the business (selected for their relevant technical, commercial, or other skills) or from a particular Region. The Regional members will be responsible for the parts of the project and in particular to carry out detailed evaluation of all tenders and carry out the presentations. The estimated time commitment is nine days plus attending three meetings (some of the meetings could be by video conference). 5. The evaluation moderator is the manager of the evaluation team, and has the responsibility of ensuring that evaluation activities are performed fairly and objectively. He or she should not carry out any particular part of the evaluation, but may act as a sounding board if required by individual team members, in the performance of their own parts of the evaluation.”
“1. The board in exercising this function through their committee are considering the allocation of very large sums of public money. 2. On behalf of litigants who could not otherwise afford to seek compensation to which, under the law, they might legitimately be entitled. 3. That the public importance of making the right choice is obvious. It is in the interests of the plaintiffs and of the defendants and of the court, and hence the public as a whole, that the solicitors chosen should be the ones best fitted to use public funds in the most effective way in the pursuit of their clients cause. 4. That it should be noted that the board is the sole and final arbiter of selection…. …It is submitted that there is here a “vital public interest” in the procedurally regular and fair conduct of the selection process within the aegis of public law.”
“On its face, this is really a commercial dispute between a successful and an unsuccessful tenderer; a situation which is not, of course, at all uncommon. If there were no statutory requirement that the city council should enter into a contract for its waste disposal operations, and particularly the construction of the incinerator to be the subject of a contract entered into by tender, but if the council had sought voluntarily to enter into a contract by tender deciding to adopt that process of its own volition, then in my view there would be no public law element in such a dispute at all. Mass Energy could then only hope to bring an action against the council on some contractual basis, for instance if they could persuade a court that there was some sort of implied term which entitled them to recover the wasted cost of tendering…. …I accept that because the statutory powers of the council not to contract by means other than those described in Part II of Schedule 2 of the Act, there is a public law element in this dispute to this extent (but only to this extent): that it is a proper subject for judicial review to consider whether the council have complied with Section 51(1) and entered into a contract as a result of following the procedure laid down in Schedule 2, Part II of the Act. In my judgment, judicial review has no further place in my judgment in this dispute.”
“This analysis makes a distinction between statutory fault in not following statutory rules…on the one hand; and actions of what might be called a normal commercial nature in awarding the contract itself. I would, however, immediately agree that that analysis does not and should not exclude public law entirely from the contract-awarding process, even if there were no statutory breaches involved: for instance if there were bribery, corruption or the implementation of a policy unlawful in itself, either because it was ultra vires or for other reasons…”
“The fact that a body is exercising a statutory power will entitle the court to consider whether there must be implied an obligation, for example, to act fairly,… The point, however, is that to have a right which can be the subject of review that right must flow from the statute if it is to the statute that one must look for providing a public law element. It is not enough to say simply that the governmental authority is acting by reference to certain statutory provisions without the additional factor that it is those statutes which impose the obligation which is said to have been broken.”