The recent UK case of J Varney & Sons Waste Management Ltd v Herfordshire County Council highlights the obligations on contracting authorities to act in a transparent manner and to disclose all award criteria and weightings in project procurement.
The UK Court of Appeal reviewed a challenge against a county council under the UK public procurement legislation. The council had adopted a restricted procedure in tendering for waste processing facilities. The weighting structure as published by the council specified that submissions would be evaluated firstly, on the basis of the most economically advantageous tender (65%); and secondly, resources to deliver customer satisfaction (35%).
Tenderers were required to complete various return schedules in their tender packages giving details of various matters, including resource details.
The council assessed the schedules on a weighted basis, treating them as subsets of the main award criteria weighting, which was not disclosed to the tenderers. The claimant in this case, an unsuccessful tenderer, argued that these weightings would have impacted their tenders and ought to have been disclosed.
However, the Court of Appeal supported an alternative view that only high level criteria and its associated weighting needed to be disclosed. The returns were found to be sub-criteria and there was no absolute requirement for these to be disclosed. Each tenderer had been given the same information and there had been no breach of the principles of equality and transparency. The Court unanimously dismissed the appeal.
Irish legislation, like its UK counterpart, is based on EU procurement law and a similar approach would likely be adopted by the Irish courts in project procurement challenges.
The case demonstrates that this is an increasingly litigious area for public procurement across all project sectors. Contracting authorities, therefore, need to carefully consider selection and award criteria in issuing and evaluating tenders if they wish to avoid the necessity of either re-tendering or being subject to challenge.
Contributed by Cassandra Byrne, Jarleth Heneghan.
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