“The most economically advantageous tender in terms of the criteria stated below: 1. Price. Weighting: 65. 2. Customer satisfaction. Weighting: 35.”
“Hertfordshire County Council will incorporate a minimum 10 calendar day standstill period at the point information on the award of the contract is communicated to tenderers. This period allows unsuccessful tenderers to seek further debriefing from the contracting authority before the contract is entered into. Applicants have 2 working days from the notification of the award decision to request additional debriefing and that information should be provided a minimum of 3 working days before the expiry of the standstill period....The purpose of the standstill period referred to above is to allow parties to apply to the Courts to set aside the award decision before the contract is entered into.”
“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%).”
“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.”
“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 Friday25 July 2008 .”
“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.”
“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.”
“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””
“42 In Commission of the European Communities v French Republic (Case-C-340/02) [2004] ECR 1-9845, para 34 the European court said that - "The principle of equal treatment of service providers, laid down in. . . the Directive, and the principle of transparency which flows from it . . . require the subject matter of each contract and the criteria governing its award to be clearly defined." 43 The rationale of the principle has been expressed in a number of different ways. (1) First, it enables the contracting authority to satisfy itself that the principles of equal treatment and of non-discrimination on the grounds of nationality have been complied with: Telaustria Verlags GmbH v Telekom Austria AG (Case C-324/98 ) [2000] ECR 1-10745, para 61; SIAC Construction Ltd v Mayo County Council (Case C-19/00 ) [2001] ECR 1-7725, para 41 and Commission of the European Communities v French Republic (Case C-340/02 ) [2004] ECR 1-9845, para 34. (2) Second, it facilitates competition: Telaustria Veriags GmbH v Telekom Austria AG (Case C-324/98 ) [2000] ECR 1-10745, para 62; Parking Brixen GmbH v Gemeinde Brixen (Case C-458/03 )[2005] ECR I-88 , paras 50, 52 and Impresa Portuale di Cagliari Sri v Tirrenia di Navagazione SpA (Case C-174/03 ) (unreported) 21 April para 75, per Advocate General Jacobs. (3) Third, it enables the impartiality of procurement procedures to be reviewed: Telaustria Veriags GmbH v Telekom Austria AG (Case C-324/98 ) [2000] ECR 1-10745, para 62 and Impresa Portuale di Cagliari Sri v Tirrenia di Navagazione SpA (Case C-174/03 ), para 75, per Advocate General Jacobs. (4) Fourth, it precludes any risk of favouritism or arbitrariness on the part of the contracting authority: Commission of the European Communities v CAS Succhi di Frutta SpA (Case C-496/99 P) [2004] ECR 1-3801, para iii. (5) Fifth, it promotes a level playing field by enabling all tenderers to know in advance on what criteria their tenders will be judged and those criteria are assessed objectively; SIAC Construction Ltd v Mayo County Council (Case C-19/00 ) [2001] ECR 1-7725, para 38, per Advocate General Jacobs.”
“In a helpful case-note written on the Lianakis case by Professor Sue Arrowsmith which has been published on the Themis procurement law portal, she explained that "entities that wish to use sub criteria must state them in the notice or documents – otherwise they must simply apply the award criteria in a general discretionary manner with out using the specific sub criteria at all". As I will explain, this was the same approach adopted by the Court of Appeal in the present case when deciding that there was a serious issue to be tried on this point.”
“…Community law does not preclude a [contracting authority] 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.”
“However, that directive does not preclude a Member State from providing for further exclusionary measures designed to ensure observance of the principles of equal treatment of tenderers and of transparency, provided that such measures do not go beyond what is necessary to achieve that objective.”
“53 As was noted in paragraph 39 of this judgment, the primary aim of Directive 93/37 is to open up public works contracts to Community competition. The purpose of that directive is to avoid the risk of the public authorities indulging in favouritism (see, to that effect, Ordine degli Architetti and Others, paragraph 75, and Lombardini and Mantovani, paragraph 35). 54 The Community coordination of procedures for the award of public contracts is designed in particular to avoid both the risk of preference being given to national tenderers whenever a contract is awarded and the possibility that a contracting authority may choose to be guided by considerations which are unrelated to the contract in question (see, to that effect,Case C-380/98 University of Cambridge[2000] ECR I-8035 , paragraph 17;Case C-237/99 Commission v France[2001] ECR I-939 , paragraph 42; and Lombardini and Mantovani, paragraph 36). 55 Against that background, as the Advocate General observed at point 30 of his Opinion, it is appropriate to grant the Member States a certain discretion for the purpose of adopting measures intended to safeguard the principles of equal treatment of tenderers and of transparency, which, as was noted at paragraph 45 of this judgment, constitute the basis of the Community directives on the award of public contracts. 56 Each Member State is best placed to identify, in the light of historical, legal, economic or social considerations specific to it (see, to that effect, La Cascina and Others, paragraph 23), situations propitious to conduct liable to bring about breaches of those principles. 57 Consequently, Community law does not seek to call into question the assessment of a Member State, in the light of the specific context of that Member State, as to the particular risk that such conduct will arise if, amongst the tenderers for a public works contract, there is an undertaking active in the media sector or connected with persons involved in that sector, and as to the need to take measures to reduce that risk.”
“If the Authority has not complied with its obligations as to equality, transparency or objectivity, then there is no scope for the Authority to have a "margin of appreciation" as to the extent to which it will, or will not, comply with its obligations.”
“ 30 However, the fact that a candidate or tenderer learns that its application or tender has been rejected does not place it in a position effectively to bring proceedings. Such information is insufficient to enable the candidate or tenderer to establish whether there has been any illegality which might form the subject-matter of proceedings. 31 It is only once a concerned candidate or tenderer has been informed of the reasons for its elimination from the public procurement procedure that it may come to an informed view as to whether there has been an infringement of the applicable provisions and as to the appropriateness of bringing proceedings. 32 It follows that the objective laid down in Article 1(1) of Directive 89/665 of guaranteeing effective procedures for review of infringements of the provisions applicable in the field of public procurement can be realised only if the periods laid down for bringing such proceedings start to run only from the date on which the claimant knew, or ought to have known, of the alleged infringement of those provisions (see, to that effect, Universale-Bau and Others, paragraph 78). 33 This conclusion is supported by the fact that Article 41(1) and (2) of Directive 2004/18, which was in force at the time of the facts in the main proceedings, requires contracting authorities to notify unsuccessful candidates and tenderers of the reasons for the decision concerning them. Such provisions are consistent with a system of limitation periods under which those periods start to run from the date on which the claimant knew, or ought to have known, of the alleged infringement of the provisions applicable in the field of public procurement.”
“Only once the unsuccessful tenderer or candidate has been informed of the essential reasons for his being unsuccessful in the award procedure may it generally be presumed that he knew or in any case ought to have known of the alleged breach of procurement law. Only from then on is it possible for him sensibly to prepare a possible application for review and to estimate its chances of success. Before receiving such reasons, on the other hand, the person concerned cannot as a rule effectively exercise his right to a review.”
“Article 1(1) of Council Directive 89/665/EEC of21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Council Directive 92/50/EEC of18 June 1992 , requires that the period for bringing proceedings seeking to have an infringement of the public procurement rules established or to obtain damages for the infringement of those rules should start to run from the date on which the claimant knew, or ought to have known, of that infringement.”
“Given the financial information available I consider that Edwards Waste Management Limited is financially acceptable to be invited to tender; however, as they currently undertake a significant level of work for the County Council I consider that any single package that they are awarded should not exceed£375,000 at the present time up to an aggregate value of£1,500,000 per annum.”
“Financial limitation c£355k due to other work from the CC. Estimated total award is c£2 million ”
“I am concerned that Edwards is being awarded this contract as I am currently undertaking a review for a contract also with Edwards for the Central Container Service which is already above the agreed guidelines for exposure. I am also not happy about being pressurised into making statements regarding the suitability of these companies just prior to award of contract when this work could have been done a few weeks ago. To award both contracts to Edwards is exposing HCC to unnecessary risk and I cannot support this.”
“I have reviewed the financial information and undertaken a review of current spend etc and can advise that I am happy to recommend that Edwards is allocated a maximum annual contract and spend limit of£2.4 million . If the total contract levels are above this then it is for the Chief Officer to decide if this is acceptable.”
“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””
“the Contractor’s charge for providing the services which shall cover all of the Contractor’s expenses in providing the Services and shall cover all of its obligations under the Contract.”
“75 The Court finds that the applicant cannot criticise the Council for checking many of the prices quoted in its tender. It is apparent from the wording of Article 30(4) of Directive 93/37 [the predecessor of the current Directive] that the Council is under a duty, first, to identify suspect tenders, secondly to allow the undertakings concerned to demonstrate their genuineness by asking them to provide the details which it considers appropriate, thirdly to assess the merits of the explanations provided by the persons concerned, and, fourthly, to take a decision as to whether to admit or reject those tenders (Joined Cases C-285/99 and C-286/99 Lombardini and Mantovani[2001] ECR I-9233 , paragraph 55). The Court notes, for example, that the Council, in its defence, stated that it had questioned the applicant about very many of the abnormally low prices, namely the price of 319 items in the summary out of a total of 1 020. It also asked the applicant for clarification regarding a series of very blatant anomalies and particularly about the price of the doors, which are the same for single doors, double doors or glass doors. The applicant has not provided adequate explanations for those anomalies either in its reply or at the hearing. 76 In that regard, the Court observes that, although Article 30(4) of Directive 93/37 does not require the Council to check each price quoted in each tender, it must examine the reliability and seriousness of the tenders which it considers to be generally suspect, which necessarily means that it must ask, if appropriate, for details of the individual prices which seem suspect to it, a fortiori when there are many of them. Furthermore, the fact that the applicant's tender was considered to conform to the contract documents did not relieve the Council of its obligation, under the same article, to check the prices of a tender if doubts arose as to their reliability during the examination of the tenders and after the initial assessment of their conformity.”
“it is not my task merely to embark on a re-marking exercise and to substitute my own view but to ascertain if there is a manifest error, which is not established merely because on mature reflection a different mark might have been awarded.”
“List of Edwards’ Non-Compliances”
“the authorities give clear guidance that if Parliament creates a right which is inconsistent with a right given by the common law, the latter is displaced. By ‘inconsistent’ I mean that the statutory remedy has some restriction in it which reflects some policy rule of the statute which is a cardinal feature of the statute.”
“...given that Regulation 32 of the 1993 Regulations imposes important limits on a bidder’s ability to take against [the authority] for breach of such obligations, I do not think it could possibly have been intended that those obligations would co-exist by way of a contract, where the limitations of Regulation 32 would not apply.”