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Saturday, August 1, 2015

Questioning process of evaluation is not same as questioning evaluation judgment

World wide UK founded legal services firm Pinsent Masons LLP through its online legal news site reports, in a couple of articles, an apparently groundbreaking procurement contract award decision. 

As usual, you should read the original at the link, as I take liberal editorial liberties that may, however unintentionally, distort the content or intent of the authors.

High Court orders ‘unsatisfactory’ public contract award to be set aside
In finding against Milton Keynes Council, Mr Justice Coulson was the first judge in an English court to set aside a public body’s contract award decision under the 2006 Public Contract Regulations. The judge noted that procurement laws allow the courts to overturn a public body’s contract award in circumstances where it had “committed a manifest error”. However, he commented that these were often harder to prove than transparency or equality breaches as the contracting authority has a “margin of appreciation” when making its assessment. Despite this fact, he went through each of the award criteria one by one.

On two particular points, the judge found that the council had awarded EAS a 10/10 score when it should legally have awarded the company zero. He said that the scoring criteria were “a matter of law” and that, if a response did not meet the council’s requirements or was unacceptable in accordance with the council's own scoring methodology, then it required to be given a zero score. That the council had not done so in one particular case was “incapable of rational explanation”, the judge said.

“In my view, an informed reader would think that the EAS answers were almost studiedly vague, strong on aspiration and management-speak, light on detail,” he said. “The Woods’ answers, on the other hand, could fairly be said to bristle with detail and commitment.”

On the “unsatisfactory” scoring notes provided by the council, he said that the absence of clear reasons to explain certain scores created a “lack of certainty in the nature of the council’s case”.

"This is a significant decision because it is the first time that an English court has set aside a procuring authority's contract award decision under the Public Contracts Regulations," said procurement law expert Ben Lasserson of Pinsent Masons, the law firm behind

"Essentially, this case boiled down to whether the council's evaluation exercise had been conducted lawfully. In the past, such a challenge would have been very difficult for a claimant to sustain because the courts were always reluctant to 'second guess' a procuring authority in matters of evaluation.
Council expected to pay damages after conducting flawed procurement process
Mr Justice Coulson said that Woods Building Services (Woods) was entitled to damages after losing out on the contract on the basis of a flawed procurement run by Milton Keynes Council.

Woods also asked the High Court to order Milton Keynes Council to award the contract to it. However, that request was rejected. Mr Justice Coulson said that "requiring A to contract with B, in respect of a contract which might last for years, would be an exceptional order for the court to make".

"In principle, it might be open to the Court to order a mandatory injunction requiring the Council to enter into a contract with Woods," the judge said. "But it is trite law that a mandatory injunction, which would here require the Council to enter into a contract which would last for many years, will only rarely be granted."

"Whilst I do not suggest that a mandatory injunction of the type which they seek would never be granted in a procurement case, I am satisfied that it would only be granted in exceptional circumstances, and there are no such circumstances here," he said.

Mr Justice Coulson cited a number of reasons for not awarding Woods the contract by way of remedy, including stating that it would have been wrong to award the contract to Woods after determining that the procurement process had been flawed.

"Woods were right to challenge the procurement and, all other things being equal, they would have been awarded the contract," Mr Justice Coulson said in his judgment. "In those circumstances, it would be absurd if, having lost so badly, the Council could then avoid the natural consequence of those breaches, namely an award of damages in favour of Woods."

Public procurement law expert Christopher Murray of Pinsent Masons, the law firm behind, said that it was unusual for legal challenges brought under public procurement legislation to reach a hearing on remedies.
The typical procurement law in the US is that, whilst deference is paid to agency decisions on the facts of a decision, the decision must be made based on the factors specified in the solicitation and required by law or regulation. 

Thus, the distinction is understood: if a decision is rationally made, it will not be set aside, but it must be shown that the process of deliberation was undertaken and supported by rational application of the facts to the issues. In effect, a court will not set aside a procurement decision that it considers wrong or bone-headed so long as it was clear that a rational thought process had taken place and the judgment was not a bare conclusory opinion.

And it is not at all unusual for a court, or reviewing administrative body for that matter, to set aside an award or contract that was in violation of law. See, e.g., Guam Code Annotated §§ 5451 and 5452.

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