“References at B1, B2, B4, D and E have been made to the comparison exercise of our bid against “Model Answers”
“1. The sub-criteria (and related scoring) used within each section of the Quality Submission; The evaluation matrix used; and The scoring sheets relating to our client’s bid.”
“In terms of your request for sub-criteria and related scoring all the questions identified in the Quality Submissions part of the ITPD were assessed and evaluated by officers from West North West Homes, Aire Valley Homes and the Council and each question received a score out of 10, based on the guidance enclosed at Appendix 2. Mears submission was evaluated by a number of officers and details of the scores received using the guidance at Appendix 2 for each of the questions are provided at Appendix 3.”
“Based on the details submitted in response to each question, Panel Members are to score each of the questions in the sub sections using the following scoring guidance. Submissions including better overall proposals, better illustrated by an example will score higher. Marking Guidelines - Single score (out of 10 in line with the table below) to be awarded against each question, evaluation panel members should refer to the guidance within the model answers.”
“Each question to be scored between 0 and 10 in line [with] score definition guidance documented at 3.1 when compared against model answer.”
“For the purposes of this hearing, Leeds do not contend that Mears suffered no loss if it establishes a breach of the Regulations in respect of non-disclosure of the scoring guidance.”
“Please could you confirm if the questions within each section are weighted equally?”
“Building 1 a combination of responses either/or both of not matching full response to model answer or lack of evidence which cost a number of points. 2 not listed staff and training undertaken as suggested in the model answer for Q3.5.”
“So far as timing is concerned, an application for disclosure in these proceedings is not affected by any fixed time limit. Whilst late applications may not be granted I do not consider that any such issues arise in this case. In any event, subject to any argument at the trial of the preliminary issues, even if the provisions of Regulation 47(7) did apply to this application then, as dealt with in more detail below, time does not start to run until the date when the claimant knew, or ought to have known, of the infringement of the Regulations. I consider that in this case if there had been an infringement of Regulation 47 in terms either of a failure to provide the model answers as part of the information about contract award procedures or a failure in asserting, as LCC did at the hearing on 10 December, that the model answers might be withheld under Regulation 47(13), Mears would have to know of that infringement. Whilst reference was made to the model answers in the spreadsheet sent on15 July 2010 , I do not at present consider that this would have been sufficient for Mears to know or be in a position where they ought to have known of the infringement. Indeed without knowledge of what the model answers contain, it is difficult to contend that there has been any failure.”
“A contracting authority shall (in accordance with Article 2 of the Public Sector Directive)- (a) treat economic operators equally and in a non-discriminatory way, and (b) act in a transparent way.”
“Where a contracting authority intends to award a public contract on the basis of the offer which is the most economically advantageous it shall state the weighting which it gives to each of the criteria chosen in the contract notice or in the contract documents or, in the case of a competitive dialogue procedure, in the descriptive document.”
“The aim of those provisions is, accordingly to allow all reasonably well-informed and normally diligent tenderers to interpret the award criteria in the same way (see, to that effect and by analogy,case C-19/00 SIAC Construction[2001] ECR I-7725 , paragraph 42) and, consequently, to have equal opportunity in formulating the terms of their tenders (see, to that effect and by analogy, Universale -Bau and Others, paragraph 129 above, paragraph 93).”
“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, andCase C-470/99 Universale-Bau and Others[2002] ECR I-11617 , paragraph 98).”
“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. If it did the decision would be contrary to Community law. 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. If it did the decision would be contrary to Community law. 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. If it did the decision would be contrary to Community law.”
“— 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.”
“Therefore, 'award criteria' do not include criteria that are not aimed at identifying the tender which is economically the most advantageous, but are instead essentially linked to the evaluation of the tenderers' ability to perform the contract in question.”
“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.”
“a contracting authority cannot apply sub-criteria for award criteria which it has not previously brought to the tenderers' attention.”
“Admittedly, one could argue that there was not a true breach of transparency as long as these topics were reasonably predictable by an informed bidder and were consistent with the published criteria. I find that was true of these topics. But that argument is undermined by the fact that they are then given weightings which vary from topic to topic. It did not seem to me to be made out or indeed even argued, that the weightings for each topic were predicted or predictable by a reasonable bidder. There may not have been anything irrational about them but they were very much subjective judgments formed by the panel collectively. I find that the sub-weightings were not predictable. It seems to me therefore that on that basis the topics as I have called them beginning with “data base of costs information” under whole life costs in BO1 down to “liaison with employer/ICT” in EO2 are elements which ought to have been disclosed with their weightings to the plaintiff and other bidders.”
“The defendant’s attempt at a rigid stratification does not seem to me borne out by the case law of the European Court. It seems to me that the language of ATI in particular is designed to secure, as it says, that the bidders know all the elements or sub-elements which could affect their preparation of the bid. … However, having chosen to have a Framework Agreement for all those tasks it is clear that at least so far as the 39 items are concerned that they and their weightings did have to be furnished to the bidders in advance to comply with the decisions of the European Court. I find as a fact that this material, and the evidence before me, could have affected the preparation of the document. Indeed I consider it likely that it would have affected such preparation. A bidder would be bound to take it carefully into account in allocating its strictly limited number of characters in each section.”
“Against that background, counsel for Morrison submitted that it is seriously arguable that, by applying the matters set out in the aide memoire and taken into the scoring sheets, the Council had in the present case applied additional criteria to the evaluation of the bids which had not been disclosed to the bidders in advance as required by the Directive and the 2006 Regulations. Against that, counsel for the Council submits that everything that was set out in the aide memoire and taken into the scoring sheets was something that was implicit within the fairly detailed criteria that were set out in the invitation to tender. Moreover, he made the point that, as can be seen from the example of Question 1, which I quoted earlier, the criteria on their face were non-exhaustive and exemplary. Accordingly, he submitted that it is not arguable that the Council has acted in breach of its obligations.”
“… there is a serious issue to be tried as to whether the Council complied with the obligation to disclose the evaluation criteria in advance to prospective tenderers. I consider it arguable that it did not do so, in the same way as the Defendants in the Lettings International and McLaughlin and Harvey cases were held not to have done so.”
“My reasons for concluding that the return schedule in this case, unlike the method statements considered by Silber J. in the Letting International case, are not award criteria, are as follows. First the relevant stated award criterion in that case of ‘Compliance with Specification’ was somewhat broad and vague and so it is not difficult to see why the judge considered that the method statements, which were much more specific, were distinct award criteria. Second, Silber J. determined that the method statements were distinct criteria by reference to the dictionary definition of ‘criterion’ as ‘principle, standard or test by which a thing is judged, assessed or identified’. Applying that definition, it seems to me that the relevant principles or standards or tests in the present case 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 Schs1-15) sub-sets of those principles or standards or tests. Return Schedule 16 simply dealt with the criterion of price.”
“Please outline your plan for provision of local employment and training opportunities in the first year of this contract, including the resources within and external to your organisation that will support that. In addition describe how the first year plan will be developed to deliver sustainable benefit by way of indicative plans for years 5 and 10 of the contract.”
“Provide details of how the Bidder will adopt innovative approaches to reduce the environmental impact of their activities to deliver the repairs and maintenance contract in accordance with good practice (in accordance with the Reduce, Reuse, Recycle initiative) and the Employer sustainability strategy”
“Fuel poverty reduction proposals detailed”
“Please provide details of staff and management training and development arrangements.”
“Bidders are to provide details of what platform their IT systems run on? If applicable the Bidder is to provide relevant examples of working with the Orchard system?”
“The Bidder is to demonstrate the mobile front end which their workforce utilises?”
“The Bidder is to demonstrate ways in which they exchange data electronically with Clients already? How is this done and in what Format?”
“Cover error procedures to ensure no data is lost in either direction.”
“Describe your lone working policy and the measures you have in place to ensure suitability of: a) Operatives which you send to the homes of customers who may be classed as being vulnerable?”
“Describe what expertise and knowledge your organisation has with servicing/inspection/repair and installation of the following areas of work.”
“Identifying areas of work where alternative practices may be implemented through dialogue to achieve energy savings.”
“A breach of the duty owed in accordance with paragraph (1) and (2) is actionable by any economic operator which, in consequence, suffers, or risks suffering, loss or damage and those proceedings shall be brought in the High Court.”
“The argument is that in order to be entitled to pursue a claim of any kind a bidder, in this case the contractor, has to show that were it not for the alleged breaches of the regulations, his tender would have been successful. I find it difficult to accept that submission. The purpose of regulation 47(6) is to render a breach of the regulations actionable at the suit of an economic operator who has suffered or risks suffering loss or damage as a result. In other words, it is concerned with providing a cause of action, not with establishing a precondition to the commencement of proceedings. If a tenderer seeks a remedy in damages, it will of course, be necessary for it to prove its loss at trial, but I doubt whether in every case it need go so far as to show that it would have been successful in obtaining the contract. If the breach of duty has compromised the transparency and fairness of the process as a whole, the claimant will have lost the opportunity of taking part in a properly constituted and properly operated tender process, and it is at least arguable that the loss of a significant chance of obtaining the contract is enough to found a claim. That is really what the contractor is saying in this case. In my view, therefore, regulation 47(6) does not provide a complete answer to the contractor’s claim in the present cases.”
“Regulation 47(6) means that the claimant is not precluded from claiming that there has been a breach of reg 30 provided that it can show that it has suffered in the words of Moore-Bick LJ ‘the loss of a significant chance of obtaining the contract’ and it is in unnecessary to show actual loss.”
“The bidder will be able to show that a breach of duty will cause him to suffer loss or damage, or the risk of loss or damage, if he had a chance (which the law recognises sufficiently good to merit consideration) that if the breach had not been committed, the contract would be awarded to it and the breach causes the bidder to lose that chance: Matra Communications SA v Home Office.”
“For the purposes of this hearing, Leeds do not contend that Mears suffered no loss if it establishes a breach of the Regulations in respect of non-disclosure of the scoring guidance.”
“… Member states are required to ensure that the contracting authority’s decision prior to the conclusion of the contract as to the bidder in a tender procedure with which it will conclude the contract is in all cases open to review in a procedure whereby an applicant may have that decision set aside if the relevant conditions are met, notwithstanding the possibility, once the contract has been concluded, of obtaining an award of damages.”
“On the other hand, it is important to bear in mind that the primary objective that the 1993 Regulations and Council Directive 92/50/EEC are intended to implement is the open and transparent award of public service contracts. Such open and transparent competition is not only in the interest of the applicant but also that of the general public. Indeed it seems to me that it might well be argued that the European jurisprudence reflected in the Remedies Directive as interpreted by the decisions such as Alcatel [1999] ECR 1-7671 intended injunctive relief to the primary remedy. After giving the matter careful consideration I am not persuaded, given the particular circumstances of this case, that damages would be an adequate remedy.”
“I see nothing in the Regulation, nor in the Remedies Directive 92/13, which justifies the submission made by Mr Carr that the effectiveness of enforcement of the Regulations requires or supports a presumption in favour of the grant of restraining relief rather than confining a provider to a claim for damages. I think the factors with which the courts are familiar are material to what is expressed to be a general discretion as to whether to grant relief and if so to decide the appropriate relief to be granted. Those factors include delay, prejudice, the adequacy or otherwise of damages and the general policy considerations to which I have referred.”
“14. Where the relief is sought in respect of breaches of the Regulations...the remedies will turn on the effect in English law, including therein the relevant Community law of Regulation 29(6). That is a question to be determined in the light of Alcatel. The court's duty is to interpret legislation purporting to transpose the Directive in the light of that Directive. That very familiar proposition is to be found not least in a case shown to us by Mr Béar,Case C-106/89 Marleasing, in which, to generalise somewhat the dispositif of the European Court, the court held that a national court hearing a case which falls within the scope of a Council Directive is required to interpret its national law in the light of the wording and the purpose of that Directive.”