In May this year, the Scottish courts handed down a helpful judgment on evaluating tenders and the extent of information to give to bidders in the “standstill letter”. Some very clear guidance emerges from this case which contracting authorities should follow.
The case, Healthcare at Home Limited v The Common Services Agency, concerned the establishment of a single supplier framework for services related to the dispensing and delivery of herceptin and various support. Healthcare at Home Limited (HAH) was the incumbent provider. The contract was however awarded to BUPA Home Healthcare which HAH challenged.
The challenge was on two main grounds. The first concerned a “silo” system of scoring bids. The tender was divided into different sections and the sections were scored by individuals with different specialist expertise. This meant that no one scorer reviewed the entire tender. Instead, different individuals scored different sections and the marks were aggregated. HAH challenged on the basis that this was not expressly stated in the tender; the approach lacked clarity and therefore transparency as information that was relevant to one section was not reviewed simply because it was included in another section.
The court found in favour of the contracting authority. It stated that it was implicit in a scoring system involving different areas of expertise that scorers may not review the entire tender. The court also considered a related issue: if a scorer did in fact score two sections with material relevant to the first section in the second section, should they have regard to this? Here the court found that there was no evidence that access to different sections for different scorers had adversely impacted on HAH’s scores.
The court did give guidance on the running of future tenders and contracting authorities should be aware of this. The judge said that a contracting authority should expressly state in the tender what was implicit in the approach to scoring to avoid any potential for confusion. Also scorers should be clearly directed in their approach to scoring, particularly when different scorers review a different number of sections of a tender, to ensure consistency of approach.
The second main ground of challenge was that the Common Services Agency had not provided sufficient reasons for its decision not to award the contract to HAH. The court again found in favour of the contracting authority. On reviewing the reasons given, it stated that the reasoning must be clear and unequivocal and give the unsuccessful tenderer sufficient information to understand the reasons and articulate the basis of a challenge should the unsuccessful tenderer decide to bring court proceedings.