“Willmott Dixon should not see themselves as being the cause of the problem. We had issues of contract performance and KPI’s with them and indeed with other incumbent contractors under the old régime, but even if we had not, the problems that we had identified still remained. The issues we had related to high cost, and low customer satisfaction..... But it was the old contractual regime that permitted incumbent contractors to charge for the work that they did, without the incentive to get things right first time. ….”
“The Council has spoken to numerous tenants about the repair service that they receive and generally the feedback has shown a poor diagnosis of default, poor communication on what repairs are ordered and missed appointments leading to wasted visits, resident dissatisfaction and extra costs. Residents have also said that in some cases numerous follow-up calls are needed to get the repair completed, by teaming up with Mitie, these problems will be dramatically reduced, according to the Council.”: [H12/288]”
“A contracting authority shall (in accordance with Article 2 of the Public Sector Directive) – (a) treat economic operators equally and in a nondiscriminatory way; and (b) act in a transparent way.”
“35. The Court must carry out its review with the appropriate degree of scrutiny to ensure that the above principles for public procurement have been complied with, that the facts relied upon by the Authority are correct and that there is no manifest error of assessment or misuse of power. 36. If the Authority has not complied with its obligations as to equality, transparency or objectivity, 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. 37. In relation to matters of judgement, or assessment, the Authority does have a margin of appreciation so that the Court should only disturb the Authority’s decision where it has committed a ‘manifest error’. 38. When referring to ‘manifest’ error, the word ‘manifest’ does not require any exaggerated description of obvious. A case of ‘manifest error’ is a case where an error has clearly been made.”
“47. It should be recalled that the principle of equal treatment of tenderers which, … underlies the directives on procedures for the award of public contracts … implies, first of all, that tenderers must be in a position of equality both when they formulate their tenders and when those tenders are being assessed by the contracting authority … . 48. More specifically, that means that when tenders are being assessed, the award criteria must be applied objectively and uniformly to all tenderers….. 49. Second, the principle of equal treatment implies an obligation of transparency in order to enable verification that it has been complied with, which consists in enquiring, inter alia, review of the impartiality of procurement procedures … 50. Objective and transparent evaluation of the various tenders depends on the contracting authority, relying on the information and proof provided by the tenderers being able to verify effectively whether the tenders submitted by those tenderers meet the award criteria. 51. It is thus apparent there where a contracting authority lays down an award criterion indicating that it neither intends, nor is able, to verify the accuracy of the information supplied by the tenderers, it infringes the principle of equal treatment, because such a criterion does not ensure the transparency and objectivity of the tender procedure. 52. Therefore, an award criterion which is not accompanied by requirements which permit the information provided by the tenderers to be effectively verified is contrary to the principles of Community Law in the field of public procurement.”
“32. I would be prepared to hold, in an appropriate case, that a judge would be entitled to find that the decision-maker was in fact influenced by an irrelevant consideration, even though he was obviously not aware that he was influenced. I am not prepared to do so on the findings in this case. The issue must be considered in the context not of a ‘hunch’ preference for one tenderer over another but in the context of a carefully devised and operated assessment procedure, with scores under many headings. If that procedure is honestly operated, as the judge found it was, it is extremely difficult to go on to find that the process was deflected by reason of regard for an irrelevant consideration. Subconscious bis as between SITA and EWC was expressly found not to have been present on another aspect of the choice. 33. Mr Birch was acting professionally and had been advised to ignore the financial standing of EWC. He said that he followed the advice and ignored the issue. He was found by the judge to have been an honest witness. A court should in my view be very slow in such circumstances to find that he was influenced by that issue. Even lay jurors are relied on in criminal cases to ignore against one defendant evidence admitted as material to another. 34. Moreover even though I accept that in the case of witnesses found to be honest, a judge may on some occasions hold that they were influenced by subconscious considerations, contrary to their belief, it is vital that it is put to them in the plainest terms that they were so influenced.”
“It frequently happens that judges, tribunal members and other decision-makers are aware of facts which from a common sense point of view, are relevant (and possibly even important) but which they are not permitted to take into account. The decision-maker is human. The best that he or she can do is to embark upon an objective assessment, consciously focussing upon the matters which he or she is required or permitted to consider and consciously putting out of his or her mind the other matters. If the decision-maker does that any court or higher court reviewing the decision should not embark upon the question whether subconscious influences were at work, as EWC contended in this case.”
“Under the 2006 Regulations as amended the principal way in which an unsuccessful bidder, such as the claimants, can challenge the proposed award of a contract to another bidder is to show that the public body’s evaluation of the rival bids either involved a manifest error or was in some way unfair or arose out of unequal treatment. Accordingly, in deciding such claims, the court’s function is a limited one. It is reviewing the decision solely to see whether or not there was a manifest error and/or whether the process was in some way unfair. The court is not undertaking a comprehensive review of the tender evaluation process; neither is it substituting its own view as to the merits or otherwise of the rival bids to that already reached by the public body.”
“In summary, I consider that the authorities demonstrate that, where the issues are concerned with manifest error or unfairness, expert evidence will not generally be admissible or relevant in judicial review or procurement cases. That is in part because the court is carrying out a limited review of the decision reached by the relevant public body and is not substituting its own view for that previously reached; in part because the public body is likely either to be made up of experts or will have taken expert advice itself in reaching the decision; and in part because such evidence may usurp the court’s function.”
“What my learned friend will no doubt be saying is that you are not supposed to re-score. Fine, but what we are saying is you are certainly entitled to look at the scoring and seeing whether or not that plainly reflects a breach of the relevant principles. It may be when you come to causation you do have to take a view on the scoring, even though you may not actually say: Yes I definitely know there would have been 33 more points here or whatever. But you may have to take some view when it comes to causation, as to whether or not the effect is minimal or substantial.”
“It is important to bear in mind that the underlying principle in Lianakis [2008] ECR 1-251Case C-53/02 ..... is that what is taken into account in the evaluation of tenders must be limited to matters which are relevant to the identification of the most economically advantageous tender. So considerations as to the bidder’s financial standing, or its general ability to perform a contract of this kind, are matters which are relevant to the bidder, not the bid and which should be assessed only at PQQ stage. However, matters such as the identity of particular individuals or sub-contractors who are to be deployed on the contract may be relevant for consideration if that is a facet of how the contract is to be performed, and so potentially relevant to how economically advantageous it is. As a general rule of thumb, it will not normally be wrong for the contracting authority to take account of matters which the bidder has itself deployed in its tender to explain how it will perform the contract.”
“First, there was concern that, having applied at the PQQ stage on the basis that there would be a sole provider using no significant sub-contractors, WDP’s tender was then submitted (without any prior notification to HF or accompanying explanation) on the basis that the significant gas works would be sub-contracted to PH Jones. This raised questions as to what had prompted a very late change, and whether there was a well established supply chain in place.”
“The term ‘sea-change’ may not have been used, Mr Parkinson but it was made pretty clear by the Council, wasn’t it, that it was looking for radical change? A. My Lord, I cannot deny that it says ‘radical change’ in this document.”
“The court’s function is a limited one. It is reviewing the decision solely to see whether or not there was a manifest error and/or whether the process was in some way unfair. The court is not undertaking a comprehensive review of the tender evaluation process; neither is it substituting its own view as to the merits or otherwise of the rival bids for that already reached by the public body.”
“… I agree with Mr Anderson that 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 of on mature reflection a different mark might have been awarded. Fourth the issue for me is to determine if the combination of manifest errors made by Newham in marking the tenders would have led to a different result.”
“If stated in the Term Partnering Agreement that this Clause 13.3 applies, the Client may terminate the appointment of all other Partnering Team members … at any time during the Term or as otherwise stated by the period(s) of notice to all other Partnering Team members stated in the Term Partnering Agreement.”
“The court, in my view, has to conduct a factual inquiry as to how the contract would have been performed had it not been repudiated. Its performance is the only counterfactual assumption in the exercise. On the basis of that premise, the court has to look at the relevant economic and other surrounding circumstances to decide on the level of performance which the defendant would have adopted. The judge conducting the assessment must assume that the defendant would not have acted outside the terms of the contract and would have performed it in his own interests having regard to the relevant factors prevailing at the time. But the court is not required to make assumptions that the defaulting party would have acted uncommercially merely in order to spite the claimant. To that extent, the parties are to be assumed to have acted in good faith although with their own commercial interest very much in mind.”